Volume 43 — New Jersey Equity Reports

<p>On hearing on demurrer.</p>

<p>A married woman, who has acquired an interest as tenant in common in land since July 4th, 1852, may institute a suit for partition of the land without joining her husband as a party to it.</p>

<p>On motion to quash the return to the commission.</p>

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

<p>Where it appears that illegal interest or bonus was either taken by a mortgagee himself, or was paid to his agent pursuant to the terms of the loan, with his knowledge and by his procurement, the contract must be declared usurious, and the lender must be subjected to the penalty of the statute. In such case the lender’s recovery will be the amount actually loaned less the interest which was paid in excess of lawful interest on that sum, without either interest or costs of suit.</p>

<p>1. A reputable solicitor of this court was consulted upon questions involved in an anticipated suit by the person who was made the defendant when the suit was afterwards commenced, and conceiving that he had been engaged to act for the defendant in good faith, in order to expedite the determination of the questions, at the institution of the suit, waived process and the right to answer and admitted the allegations of the bill. After this the defendant recognized him as his, the defendant’s, solicitor in the subsequent stages of the cause, and at one time, at the hearing before the master, appeared with him. The complainants prosecuted the suit to final hearing. When the settlement of the final decree was pending, for the first time, the defendant denied the authority of the solicitor to enter the waiver. — Held, that he was then estopped from denying that authority.</p> <p>2. A counselor, in the exercise of his judgment, in good faith, did not offer evidence which his client urged him to put in the case. — Held, that his failure to do so is mot a ground for rehearing.</p>

<p>On motion for injunction.</p>

<p>1. An assignee in bankruptcy, appointed pending a suit to foreclose a mortgage on lands of the bankrupt, will be bound by the decree and sale made in such suit, whether he is made a party to such suit or not.</p> <p>2. If he desires to be made a party to such suit, he must ask to be substituted in the place of the bankrupt, and if he fails to do so, his failure will be considered as a waiver of any defence he may have had.</p> <p>3. The title made under a decree condemning mortgaged premises to sale invests the purchaser with all the rights and equities inhering in either of the parties to the suit, whether complainant or defendant, at the time of the institution of the suit.</p> <p>4. So long as a judicial sale stands, the sum for which the property was sold must, as between the parties, be taken as a conclusive test of its value.</p>

<p>On hearing on demurrer.</p>

<p>1. If a cross-bill merely sets up matter which, would be equally available as a defence, under an answer, it is demurrable.</p> <p>2. A defendant can only use a cross-bill as a means of defence; he cannot use it as the means of obtaining relief in respect to a cause of action wholly unconnected with the complainant’s cause of action.</p> <p>3. Parol evidence is admissible to establish a resulting trust, but not to contradict a valid written contract.</p> <p>4. Where a complainant sues for rents which the defendant has collected, and the defendant denies the complainant’s right to them, on the ground of a resulting trust, the defendant, in order to procure a decree establishing the trust, must file a cross-bill.</p> <p>' 5. A decree establishing a resulting trust can only be made upon either an original or cross-bill.</p>

<p>On motion to dismiss as to a disclaiming defendant.</p>

<p>On final hearing on bill, answer and proofs taken before a master.</p>

<p>On application to set aside an appearance entered for defendant, and also a decree for deficiency made against him, heard on petition and proofs taken in open court.</p>

<p>On motion to dismiss bill.</p>

<p>1. Where the owner of a tract of land makes one part of it servient to another, by an alteration which is obvious and permanent, and then conveys one of the parts, his grantee takes such part benefited or burdened by the easement which the alteration created.</p> <p>2. Three things are essential to the creation of an easement in this way : first, a separation of the title; second, that before the separation takes place, the use, which gives rise to the easement, shall have been so long continued and so obvious as to show that it was meant to be permanent; and third, that the easement shall be necessary to the beneficial enjoyment of the land granted or retained.</p> <p>3. A drain or other artificial water-course, being a thing which is continuous in its service and which can always be seen or known by inspection, will, on a severance of the tenement on which it exists, pass by implication, but a right of way, being a right which is enjoyed at intervals, leaving in the interim no visible sign of its existence, will not pass.</p> <p>4. The degree of necessity which must exist to give rise to an easement by implied grant, is such merely as renders the easement necessary for the convenient and comfortable enjoyment of the property as it existed when the severance was made.</p>

<p>On an application for an injunction, heard on bill and affidavits, order to show cause and answer and affidavits.</p>

<p>On application to continue ad interim injunction order pending an appeal.</p>

<p>1. The court will dismiss a bill fi'ed for the construction of a will, if the will is free from doubt.</p> <p>2. While executors and other persons charged with fiduciary duties have a right to the direction of the court, in cases where their rights or duties are involved in doubt, and to be reimbursed for any reasonable expenses incurred in procuring such direction, yet such direction will not be given in cases where it is not needed, nor will the expenses of a useless suit be charged against trust property.</p> <p>3. No person can maintain an action respecting a subject matter, in respect to which he has no interest, right or duty, either personal or fiduciary.</p>

<p>In a suit by a widow against the heirs-at-law of her deceased husband, to-set aside a deed on the ground of fraud, the widow, under the construction which has been given to the statute of 1880, is a competent witness to testify-to transactions with her husband and statements made by him.</p>

<p>A judgment which is not founded on an actual debt or other legal liability, due or enforceable at the time of its entry, will not be upheld against the creditors of the judgment debtor.</p>

<p>1. An estate in remainder given to A and B, “or their legal representatives,” is vested, and not affected by a power given to the executor to sell the lands and divide the proceeds between A and B, in case the property cannot be satisfactorily divided.</p> <p>2. The sale of the property by A and B was an election which destroyed the executor’s power of sale, and hence he was not a necessary party to a bill for the specific performance of such sale.</p>

<p>On August 25th, 1884, L., a resident of Pennsylvania, made an assignment there for the benefit of his creditors, including therein certain lands in New Jersey, and the assignment was recorded here on October 14th, 1884. After-wards the assignee sold, and complainant bought, these lands at public auction in the city of Philadelphia. On August 23d, 1884, L. gave defendant, also a resident of Pennsylvania, a mortgage on these lands merely to secure the return of certain stocks which he had loaned L. to secure his bail in case of his arrest, which seemed imminent, and this mortgage was recorded the same day as the assignment, October 14th, 1884. On bill to quiet title — Held,</p> <p>(1) That the validity of the mortgage could be assailed in this way.</p> <p>(2) That the assignment, as recorded here, was not void because unaccompanied by an official certificate that the assignee had given bond according to the Pennsylvania statute.</p> <p>(3) That the assignee’s sale of these lands, outside of the boundaries of this state, was valid.</p> <p>(4) That the defendant, who is now prosecuting a suit in Philadelphia for the return of his above-mentioned stocks, cannot, as against the assignee and his grantee (the complainant), claim a superior equity on the ground that he gave a good consideration for his mortgage and that the assignee gave none.</p>

<p>The common council of Lambertville had, at different times and at irregular intervals, contracted with a gas company, which had erected works for that purpose, to pay the company certain prices for gas to be supplied by it to the city for lighting its streets. These contracts were in writing and were to run for the period of one year, but they were seldom renewed in writing at the expiration of the year ; two years would at times elapse before a new contract in writing would be entered into, during which period the gas company would furnish gas and the city pay therefor according to the terms of the last written contract; all of which was continued for about twenty years. The last contract in writing was made in 1884 and expired in 1885, from which last date the terms of the said last contract have been observed by each parly until January, 1887, when the common council attempted to make a contract with another company, to commence and take effect February 1st then next, before the expiration of a year from the time when the contract between the city and the gas company, whether in writing or not, had commenced to run for another year. — Held, that the common council having for so long a period, from time to time, recognized its obligation to pay for gas furnished according to the terms of the last contract in writing, although that contract had expired, an implied obligation is imposed on it to pay for gas on the same terms for an entire year, when it accepts gas for any considerable portion of the year; and held also, that a contract with any other company to furnish gas for the same time or any portion thereof is void, and its enforcement will be enjoined. — -Held, that in such case an ordinance is essential to the validity of any contract, and that the words “ rules, regulations and by-laws” are only intended to give the power to common council to point out the manner in detail by which the ordinance shall be carried out; but if this be not so, then it is held that the words are of equal import with the word “ ordinance,” and require a, like degree of solemnity and form of action by the city authorities.— Held, likewise, that the common council cannot, in such case, bind the city for a period of five years ; and held, that if in such case the authorities may proceed under the law of 1886, “by ordinance or resolution,” they must not only adopt the one method or the other, but having so adopted the one or the other they must pursue it faithfully; and hence, if they'resolve to advertise for bids in four papers it will not suffice if they advertise in only one.</p>

<p>Executors were directed to sell all of the testator’s real estate “ at such times and in such manner as they shall think most advisable.” — Held not to vest a personal discretion in them, and that therefore an administrator de bonis non, appointed on their renunciation, could exercise the power.</p>

<p>Bill for partition, and if that be impracticable, for a sale.</p>

<p>In case a testator gives $1,300 to his executor, and directs him to pay the interest thereof to his brother Thomas for life, and at the death of his brother Thomas to pay $500 thereof to a son of Thomas, also named Thomas, and the balance amongst the other children of his brother, and a portion of the $1,300 is required to pay debts, the $500 abates equally with the balance.</p>

<p>Defendant’s privy vault lies within six inches of the cellar wall of complainant’s adjoining store, and offensive matter therefrom percolates through the privy wall, the intervening soil and the cellar wall into the cellar in such quantity as to render the occupation of the store very uncomfortable. The privy was built and in use several years before complainant excavated his lot to build his cellar, and the filth was noticed oozing from the vault during such excavation. — Held, that defendant must abate the nuisance by adopting such course as will prevent the escape of the filth into the cellar.</p>

<p>On bill for partition.</p>

<p>1. A party, in order to discredit his opponent’s witness, asked him, on cross-examination, if he had not been guilty of larceny, and specified the chattels said to have been stolen, which the witness denied. — Held, that this prevented him from proving by others that the witness had admitted having stolen the goods named; nor could he be impeached by producing a justice of the peace, and asking him relative to an arrest and criminal charge of the witness before him, followed by an offer to corroborate such justice’s evidence by his docket.</p> <p>2. Query, whether a witness who has been convicted of a crime and, on cross-examination, denies it, can be contradicted by producing the record of his conviction.</p>

<p>A husband, with the full approval of his wife, was buried by his father in the latter’s cemetery lot. — Held, that the wife should be enjoined from removing his remains.</p>

<p>1. "Where general legatees are volunteers, taking of the testator’s bounty, and there is nothing in the will to indicate that one shall be paid before another, their legacies must abate proportionately in case of deficiency of assets; but where a general legacy is sustained by a valuable consideration, such as the relinquishment of a debt or of a claim of dower, and the right to the claim constituting the consideration subsists at the testator’s death, the legatee is entitled to full payment of his legacy, in preference to other general legatees, who take merely of the testator’s bounty.</p> <p>2. The burden of proving that a general legacy is entitled to priority in payment is upon him who asserts it.</p> <p>3. The mere production of the will, by which a legacy was given in the following words : “I give and bequeath to Henry Benson Duncan, for his services in assisting me at different times, the sum of two thousand dollars,” and which was executed more than six years before the testatrix’s death, does not, without other proof, sustain this burden.</p>

<p>A placed $6,000 in the hands of B, to be used in buying and selling securities. B guaranteed that the $6,000 should be returned with all profits that should be made in the business, and that the profits should equal at least seven per cent, per annum on the capital. Within a few months, $3,925 profits were made. They were suffered, however, to remain in the business. Subsequently, B met with losses which swept away all the profits and a large part of the-principal. — Held, that all that A can recover is $6,000 with seven per cent, per annum on it, less any drafts she may have made upon B after he ceased to make profits, with seven per cent, per annum on the amount of each draft from the date at which it was drawn.</p>

<p>On appeal from the Morris county orphans court.</p>

<p>A, the confidential adviser of B, who was a woman eighty-three years of age, feeble in mind and body, nearly blind and scarcely able to realize her surroundings, prepared, with his own hand, a will for B to execute, by which he was appointed executor thereof, and more than one-half of the estate was bequeathed to his wife aud son. He secured the absence of B’s only surviving daughter, the mother’s constant companion, and then, with the assistance of a servant, for whom a considerable legacy was provided, called the witnesses and superintended the execution of the paper. After the paper had been signed, the servant tied it up in the box where B’s private papers were usually kept, after the manner in which the box had been previously tied. Twenty-three days before the execution of this paper, A, attended by the same servant, secretly, at night, while one of B's daughters was dying in the house, procured B to execute a similar instrument designed to give the same direction to her estate, through which execution B acted mechanically and apparently oblivious of that which was being done about her. A now offers the alleged will for probate. — Held, that the circumstances alluded to are indicia of undue influence which throw the burden of proving the free agency of B in making the will upon the proponent, and also that in such a case the unsupported testimony of B is not sufficient to justify the admission of the paper to probate.</p>

<p>1. After a testator’s death one of his executors occupied his homestead, agreeing with one of his co-executors to pay a certain rent therefor monthly. The co-executor afterwards secured another tenant, A, who offered an increased'rent if the executors would repair the premises so as to be tenantable, which they refused to do because of the large expense, and the executor continued in possession without objection by the exceptant. — Held, that, as he paid the full rental value of the property in its unrepaired condition, he could not be charged with the amount offered by A as rent, but that as he has not paid any rent and has had the use of the money with which he should have paid rent, he must pay interest on the rent reserved from the end of each month during his tenancy, and that his co-executor is not liable to the estate therefor.</p> <p>2. Where a devisee and legatee is also an executor and excepts to his co-executor’s account in the former capacity, his testifying does not remove the statutory bar that prevents his co-executor from being a witness in his own behalf to establish his individual claim against the estate at the hearing of tha exceptions to his account.</p>

<p>On appeal from the Burlington county orphans court.</p>

<p>A resident of New York bequeathed certain property to the defendant and a third person, in trust, to pay the income thereof to A for life, and the principal to such person as A should by his will designate. The defendant alone proved that will, and executed the trust. A, by his will, appointed B, under the foregoing testamentary power, and the defendant, as A’s executor, proved his will here, and as a nonresident gave the bond required by statute. Bev. Sup. p. 778 \ 8. He filed an inventory of A’s estate, but did not account within the time prescribed by law and the condition of his bond, and when ■cited to account by the orphans court, failed to obey. An order of that court for the prosecution of his bond was set aside, and the suit thereon stayed, because (1) by the admissions of counsel in the cause, it seems that defendant did appear before the orphans court and confer with the judges as to filing his account, although the record does not mention the fact; (2) because a litigation is pending in New York over A’s will on the ground of his testamentary incapacity, and B is made a party thereto, and has answered; and (3) because defendant’s sureties are financially responsible, and a judgment against them now for the amount of the bond would be vexatious and oppressive.</p>

On application to vacate an order staying a suit which, was-commenced upon an executor’s bond by direction of the ordinary.

The complainant alleges that in 1873 she appointed the defendant her agent to collect moneys due to her, and that about June 7th of that year lie collected for her $952.33, and that he was authorized to hold that money in trust for her until the final determination of a suit in chancery between herself and her husband as complainants, and one Emson as defendant, and that that suit was finally determined in 1880 in favor of the complainants therein, and that thereby the said…

In 1881, Trotter was in possession of a leasehold estate in a mine, vein or bed of franklinite ore, situate at Franklin, Sussex county, New Jersey, under a lease made by one James L. Curtis, bearing… Held: or for a less time, upon giving notice in writing to that effect, and also the first option of purchasing on the same terms ore that Trotter might take from any adjoining mine or vein of which he might thereafter obtain possession.

<p>The debt of a devisee to the testator is not a charge on lands devised to him by the testator, in the absence of language in the will making such debt a charge.</p>

Vail, 5 Vr. 418, as to the necessity of proper allegations in the pleadings to justify judicial action are applicable to this case, and accepting the proposition of Mr. Moses in his argument for the appellants, that we may take the second, fifteenth, sixteenth, seventeenth, eighteenth and twentieth paragraphs of the complaint in the New York suit as constituting its material part for the present purpose, I am unable to find therein such allegations as would put the receiver…

Spinning, 14 Stew. Eq. I$7. Charles Spinning, late of the city of Newark, died May 11th, 1882, intestate, seized in fee of lots Nos. 31, 33 and 35 Franklin street, subject to a mortgage for $2,300, executed by him and his wife, in his lifetime, to the Newark Fire Insurance Company. There were three houses standing on the lots, two of frame and one of brick, occupied by him at the time of his death and since by his widow, the respondent, as a family residence.

I say this because I believe that the defendant, Monroe, acted in good faith. But I must remember that, unless the case be a clear one, the infant, who was innocent, ought not to suffer loss, even though there may be some doubt as to the extent of that loss. As the case is considered, all will agree that the complainant has the very highest claims upon the regard and watchfulness of the court.

<p>Mrs. Nelson, the appellant, took out a policy of insurance in a mutual company on buildings on lands owned by her. Afterwards she agreed verbally to sell the premises to her two sons, one-half of the consideration to be paid in cash and the balance secured by a mortgage on the premises, and the policy was to be assigned to them as owners as soon as the deed had been executed, and then to be re-assigned by them to her as mortgagee. The d’eed was made and delivered and recorded, and the mortgage was also executed t'hen by both the sons, but by the wife of only one son, the other not being present, and it was left in the appellant’s custody until the absent wife should sign it, when the balance of the purchase-money was to be adjusted and the arrangement as to the insurance consummated. Before that occurred, however, the buildings were burned. — Held, that the company was not, by subrogation, entitled to an assignment of the mortgage after having paid the appellant the amount of the policy.</p>

Williams, advisory master, who filed the following conclusions: It is undisputed that Lilliston, prior to 1875, owed Wild a debt, for which Wild got judgment against Lilliston in the Brooklyn city court, April 19th, 1875, for $1,100.

<p>On appeal from a decree of the chancellor, whose opinion is-reported in Kimball v. Lee, 13 Stew. Eq. 403.</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in English v. Newell, 15 Stew. Eq. 76.</p>

<p>A purchased two lots for his friend B, and improved them at his own cost. He agreed verbally with B, that, when B should repay him his expenditures, he would convey the lots to B. To secure this agreement, in case of his death, A made his will, in and by which he recited that he held the two iots to secure the payment of the moneys that B owed him, and directed that when B, or his representatives, should pay the moneys due to A or his executors, that the lots should be conveyed to him, and that if said payment should be made to A in his lifetime, or to his executors after his death, then A’s wife should have the interest of $5,000 for life, and, at her death, the $5,000 should be divided among the children of A’s sister. Before A’s death, he and B ascertained that the amount due from B was $21,000, and thereupon A conveyed the lots to B, and B gave him $3,000 in cash, and B’s bond, secured by mortgage on the lots conveyed, for $18,000. — Held, that this transaction was such a payment as the will contemplated, and that the interest of $5,000 must be paid to A’s wife for life, ánd that the principal sum must be divided among the sister’s children at the wife’s death.</p>

<p>P., having contracted to buy a tract of land, procured D. and S. to j,oin him in his purchase. Each contributed one-third of the necessary moneys, and P. took the title in his own name, and declared a trust thereof, for himself and D. and S. The land was divided into numbered lots, and each of the associates, and one M., selected four lots for the purpose of improving them. The lots chosen by D., M. and S. adjoined; D. took the lots numbered 26, 27, 28 and 29 ; M. took 30, 31, 32 and 33, and S. took 34, 35, 36 and 37. They were then graded and built upon, under the direction of P. When the improvements approached completion, P., intending to convey to each, the lots selected and improved by him or her, made deeds, by which he conveyed to-them the lots numbered from 27 to 38, inclusive of both (omitting 26, which had been improved by D., and including, in the deed to S., 38, which was unimproved). He subsequently divided the remainder of the lots between himself and D. and S., but yet retained 26 in his own name. He then entered the division, as it was intended and supposed to have been made, in his account-book, and therein made it appear that lots 26, 27, 28 and 29 had been conveyed to D., and that lots 34, 35, 36 and 37 had been conveyed to S., and thereupon the declaration of trust was destroyed. Seventeen years after its improvement, it was discovered that lot numbered 26 — of which D. for all that time had remained in peaceable possession — had not been conveyed to him, and that P., in making his first conveyances to D., M. and S. had commenced one lot too far north, and conveyed numbers 27, 28, 29 and 30 to D., and 31, 32, 33 and 34 to M., and 35, 36, 37 and 38 to S. — Held, that the deeds will be reformed to carry out the intention of the parties, and also that P. will be condemned in costs for having pertinaciously, and contrary to good faith, resisted the reformation.</p>

<p>On demurrer to bill for specific performance.</p> <p>In the fall of 1866, a number of persons of the Methodist Episcopal religious belief banded together for the purpose of erecting a church in the city of Newark. They secui-ed the land necessary for their purpose, and commenced to build. When it became advisable, to take deeds for the land, the society or congregation was as yet unincorporated. It paid the consideration for conveyances of the land, and procured two deeds to be made, ■one from Henry G. Post and wife, dated August 25th, 1866, and the other from William Westfall and others, dated November 3d, 1866, to James G. Barnet and Enoch Bolles, Jr., two of the members of the society, in fee, in trust, in the language ■following:</p> <p>“ To and for the use and behoof of a religious society and corporation connected with the Methodist Episcopal Church, which said religious society is not yet fully organized, but which is about to erect a house of worship upon said land and premises, and that the said Enoch Bolles, Jr. and James G. Barnet do, for themselves, their heirs and assigns, covenant and promise that they will execute a good and sufficient deed of conveyance of the above-described tract of land and premises unto the trustees of said religious society, as soon as the same are duly elected, or to such other person or persons as the said trustees may elect.”</p> <p>On the 16th day of October, 1867, the said society or congregation elected five trustees, and those trustees became duly incorporated under and by virtue of the provisions of the act entitled “ An act to incorporate trustees of religious societies,” approved April 17th, 1846 {Nix. Dig. 1861 p. 7%1), by the name “ The Trustees of the Centenary Methodist Episcopal Church.”</p> <p>On the 31st of October, in the same year, Messrs. Bolles and Barnet, by their warranty deed, in which they style themselves “ trustees,” conveyed the land, which had, as aforesaid, been conveyed to them in trust, to the “ The Centenary Methodist Episcopal Church,” which, in the conveyance, is described as “ a corporation duly organized under the laws of the state of New Jersey, of the city of Newark, in the county of Essex and state of New Jersey, of the second part.”</p> <p>In the covenant of warranty, which this deed contains, Bolles and Barnet agree to “warrant, secure and forever defend the said land and premises unto the said ‘The Trustees of the Centenary Methodist Episcopal Church,’ aforesaid corporation, duly organized under the laws of the state of New Jersey.”</p> <p>Since the completion of the edifice, on the land thus conveyed, the congregation, there accustomed to worship, has grown so large that a new church is needed for its accommodation, and for this reason, and because the business centre of Newark is now approaching the land, and dwellings are receding from it, it is deemed expedient to change the site of the church.</p> <p>Actuated by these circumstances, the corporation has secured a new site for a church, and is engaged in building a new edifice upon it. To provide funds for this new undertaking, the site of the old church was exposed to public sale and sold to the highest bidder, the defendant, Cortlandt Parker. A condition of the sale was, that a good title to the property should be given to the purchaser.</p> <p>Mr. Parker objects to the title which a deed from the corporation will give him, first, because it is suggested that, by the deeds to Bolles and Barnet, a trust was impressed upon the land that it should be used forever for the erection thereon of a house of worship for the congregation or society referred to in the deeds, and the religious purposes of such society; second, because, if such a trust is not thus impressed upon the land, the terms of the trust created by the deeds required that the conveyance should be to the trustees of said society as individuals, by their several names, or to such persons as they should name, and not to them as a body corporate, unless such conveyance is preceded by their request for it; third, because the deed to “ The Centenary Methodist Episcopal Church,” did not convey the land to “ The Trustees of the Centenary Methodist Episcopal Church,” the corporation which now proposes to convey said land to him.</p>

<p>To a bill filed by the widow of I., against his devisees, for an assignment of her dower in the lands devised, the defendant pleaded an agreement which had been made between the complainant and I., without the intervention of trustees, some years before the death of I., whereby the complainant had agreed to live apart from her husband, and that he should “ have to himself, his heirs and assigns, all manner of property, both real and personal,” which he then had, or should thereafter acquire. The plea was overruled, because it did not appear by it, first, that the complainant understood, at the time she entered into the agreement, that she was contracting to relinquish her dower in her husband’s lands; or second, that the complainant was adequately compensated for such relinquishment; or third, that equity and good conscience demand that the agreement shall now be enforced against her.</p>

On motion to dissolve injunction upon answer filed. The bill is filed by John Painter and the sureties upon two-bonds which were given by Painter as collector of the township of Blairstown.

<p>Where A determined to make default in the performance of a contract with B, and, in anticipation of recovery against him, because of the breach of his engagement, hurriedly sold and converted into money all his estate, which consisted of mortgages, promissory notes, chattels and land, and, when after-wards examined before a master, under the statute (JRev. p. 1%1 $ 90), gave an incredible account of his disposition of such moneys — but the same time was shown to have been making inquiry for opportunities to invest about the sum he had realized upon such conversion — it will be presumed that he has sufficient moneys in his possession to pay the judgment which B has recovered against him, and which amounts to about one-fifth of the sum which he realized as aforesaid, and he will be decreed to pay the judgment.</p>

<p>On final heaving on bill, answers and proofs taken in open court.</p>

<p>1. The registry acts do not apply to leases. The first in date stands first in right.</p> <p>2. A court of equity may protect legal rights in real estate where the right, though formally denied, is yet clear on facts which are not denied, and according to legal rules which are well settled, and the injury against which protection is asked is irreparable.</p> <p>3. An injury is irreparable which is material, and which cannot be adequately redressed by pecuniary damages.</p> <p>4. Contrary to the general rule, a mandatory injunction may issue at the inception of a suit for the protection of an easement and other rights of like nature.</p>

<p>1. For injuries resulting from the violation or destruction of public rights, in cases where no private individual right is injuriously affected, no private action can be maintained.</p> <p>2. Except in the instances where statutory provision to the contrary exists, the law gives no compensation for losses resulting from the surrender of public rights.</p> <p>3. A complainant, to entitle himself to a preliminary injunction to protect a right which he claims in land, must show that, on the undisputed facts of his case, and according to the established law of the state, he possesses the right 'which he claims.</p> <p>4. A grantee of land abutting on a public street, if his grantor owns the fee of the street, takes to the middle of the street by mere force of legal construction, unless a contrary intention is apparent.</p> <p>5. And where lands are conveyed as abutting on a proposed street, and the street extends over other lands of the grantor than those conveyed, a right to the use of the proposed street, as a means of passage to and from the lands conveyed, will arise by implication in favor of the grantee on delivery of the deed, and will continue in force until the proposed street becomes a public highway.</p> <p>6. Whether such private right will merge in the public right when the proposed street becomes a public highway, and will be extinguished with the public right if the street be afterwards vacated, or will revive on vacation, is a question on which judicial opinion is at variance, and is, as a matter of law, unsettled in this state.</p> <p>7. Nothing short of the threatened destruction of property of great value by acts of wanton lawlessness, inflicting injuries which must result in irreparable damage, will justify the granting of an injunction staying an important public work.</p>

<p>1. A father has the first and best right to act as the next friend of his infant child, in any litigation necessary for the protection of his child’s rights.</p> <p>2. Forbearance of suit to enforce a disputed claim or right, where the claim or right is honestly asserted under a belief that it is substantial, although it is in fact wholly unfounded, will constitute a good consideration for a promise to pay money.</p> <p>3. Where a person gives up what he in good faith believes to be a right of action, on the promise of another to pay money for such surrender, the real consideration of the contract consists in the detriment suffered by the person consenting to the surrender, arising from the alteration in his position caused by the promise of the other.</p> <p>4. A contract will not be reformed which must be construed and carried into effect before reformation just exactly as it would be after it has been reformed.</p> <p>5. Equity may take jurisdiction whenever it is necessary to compel the person primarily liable for a debt to perform an obvious duty, and thus relieve a person, standing as surety, from a needless burden, and also to prevent circuity of action.</p>

<p>1. The liability of an heir for the engagements of his ancestor is a legal liability, enforceable only by an action at law.</p> <p>2. A decree in equity, except it is founded on a right or cause of action which makes the decree a lien, does not bind lands, unless such efficacy is given to it by the statute.</p> <p>3. A decree for deficiency does not bind the lands of the debtor as a lien until the court has, after sale, ascertained the amount .of the deficit, and made an order or decree fixing its amount.</p>

<p>1. A release to the defendant by one of two complainants of all his interest in the subject matter of the litigation, executed pendente lite, defeats the other complainant’s right of action.</p> <p>2. Where the object of the suit is to recover certain documents belonging to complainants, and essential to their rights in an action at law, this court will not order the defendant to produce them if the proof that they are in his possession or control is not clear, or it is shown that he willfully put them away in order to obstruct justice.</p> <p>8. If the defendant was merely the agent of complainants in the original transaction, and his attorney is alleged by complainants to have possession of the documents, then such attorney ought to be a party to this suit.</p>

<p>B. & Co., who had furnished materials for erecting a building, and were entitled to a lien therefor, released their right to such lien in favor of the vendor of the lot-owner, E., before the vendor delivered his deed for the premises to E., and received a purchase-money mortgage therefor. In lieu of such lien, and to secure it, B. & Co., the same day, accepted a deed from E., which was in fact a mortgage, but the defeasance was not recorded. Afterward B. & Co. reconveyed the premises to E., who conveyed them, the same day, to J., and •J., as part of the same transfer, executed a mortgage thereon to B. & Co. for the amount of their claim. Held, that this mortgage was a purchase-money mortgage, and superior in lien on the premises to a judgment recovered by C., several years ago, against J.</p>

<p>A building contract provided for alterations, deviations or additions, and for the payment thereof. Held, that the holder of an order drawn by the builder on the owner for extra work, “ and to charge the same to account of contract,” was entitled to priority over another claimant who held a subsequent order drawn expressly for extra work ; and that such priority was not abandoned by the holder of the first order afterward proceeding thereon by notice to the owner, under section 3 of the mechanics’ lien law. Rev. p. 668.</p>

<p>In a proper case, the court of chancery may dispauper a petitioner who is proceeding, in forma pauperis, under its previous order, for a divorce, and order him to pay alimony to his wife.</p>

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

<p>A stipulation in a lease that “at the expiration of this lease the said Reed [the lessee] shall have the first right to lease l he said premises for the next succeeding year or years,” is too uncertain for the court to compel a specific performance of a renewal, or to enjoin the landlord and his grantee from recovering possession of the premises after the expiration of such lease.</p>

<p>1. A testator had no child living at the time he made his will. Afterwards six children were born, and five of them were still living when he died, without altering his will which gave all his estate absolutely to his widow. Held, under the statute (Rev. p. IS46 $ SO), that the will was void,- and that, consequently, he died intestate.</p> <p>2. The widow, supposing that she was the sole devisee, paid off, with her own money, and canceled on the record, a mortgage on part of the lands devised to her, which mortgage was an encumbrance on the lands at the time of the testator’s purchase, and its payment expressly assumed by him as part of the purchase-money. Held, that the widow was entitled to have the lien of the mortgage re-instated to secure the money so paid by her, and the lands sold to satisfy it.</p>

<p>That “The Society for* the Establishing of Useful Manufactures” is a manufacturing corporation, and exempt from taxation by its charter, lias frequently* been decided by the courts of this state, and an increase in the corporate powers, without essentially changing their character, does not render the new franchise taxable.</p>

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

<p>A corporation that has ceased manufacturing wares because it can no longer find a profitable sale therefor, is not subject to the injunction prescribed by the statute for corporations delinquent in paying their taxes.</p>

<p>The creditor of a deceased debtor who had conveyed all her lands to one of her daughters in her lifetime, filed a bill to set aside such conveyance as fraudulent, and alleged that the decedent left no will, and that no letters of administration had been taken out on her estate. — Held, that all of her children were proper parties, as next of kin, on account of their interest in decedent’s personal estate, and therefore a prayer that one of such children (not the grantee) discover whether she has any of her mother’s estate was good on demurrer for misjoinder.</p>

<p>On exception to a master’s report.</p>

<p>On motion to dismiss bill.</p>

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

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

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

<p>A minor, eleven years old, died without any personal estate, but with an undivided interest in certain lands which she had inherited from her grandfather. One of his administrators paid the funeral expenses, but took no assignment of the claim from the undertaker. — Held, that such payment was purely voluntary, and did not entitle him, by subrogation, to the undertaker’s claim, to re-imbursement out of the proceeds of the sale of the infant’s interest in the lands.</p>

<p>In June, 1883, defendant verbally agreed with complainant that, if she would do his housework and take care of him during the remainder of his lifetime, he would devise to her the house and lot wherein he then lived. She did thus care for him until 1886, when, without sufficient cause, he left the place to live with one M , and shortly afterwards made and delivered to M. a deed for his house and lot, taking from M. a bond conditioned that M. should support him during his lifetime — Held,</p> <p>(1) That complainant was entitled to relief by enjoining the conveyance of ■the property to M,</p> <p>(2) That the agreement was not invalid under the statute of frauds, and was enforceable.</p>

<p>A sheriff's sale under foreclosure of a mortgage on lands was set aside on the petition of the mortgagor, on the ground of surprise, where the petitioner was an old German woman, but little acquainted with the English language, who lived on the premises, and expected that the notice of the sale would be .posted on her house, and waited therefor. The sale produced $1,380, while the premises are claimed to be worth $2,000. The petitioner has tendered to •the sheriff the amount of the decree and costs. It further appears that the premises ought to have been sold in parcels, but were not, and therefore the «ale cannot be confirmed.</p>

<p>A testator gave a house and lot to his wife for life, and directed his executors to sell the same upon her death and divide the proceeds among his three sons. In 1871 the widow and remaindermen entered into a written agreement to sell and convey the house and lot, but nothing further was done, and she •occupied the premises until her death, in 1886. In 1872 one of the sons, James, gave a mortgage on his interest to one Bulkley, which was defective in form, but nevertheless recorded, and James’s interest in the premises was after-wards sold by his assignee in bankruptcy to Bulkley. Held, that the execution of the agreement did not deprive the executors of their testamentary power of sale, and that any portion of the proceeds belonging to James’s heirs-at-law should be paid to Bulkley’s executors, he having died meanwhile.</p>

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

<p>Defendants agreed, in writing, to pay to each of complainants a salary of $3,000 per year, and also ten per cent, of their annual profits, which percentage they guaranteed should not be less than $2,000. Complainants were to have exclusive charge and control of the*manufacture and decoration of all the wares in defendants’ pottery for three years and two months. They entered into the service, and were discharged at the end of three years, all their salaries having been paid, and credit given each of them on the books of account for $4,000 during the first two years of their service. Held, that, there being no deception or mistake shown in the agreement, nor any subsequent modification, complainants are entitled to an account of the profits of the concern during their employment; that their inability to produce certain novel wares, which were experiments undertaken and continued with defendants’ knowledge and consent, is no bar, because they have, admittedly, made a large quantity of other wares successfully; that complainants are not responsible for losses or damages, if any, attributable to causes beyond ordinary care, skill and workmanship; but, even if they were responsible therefor, such damage can not be recouped in this suit; that the defendants are estopped by their circulars and letters to their customers and agents, extolling the wares made by complainants, from now asserting their incompetency or negligence.</p>

<p>On exceptions to answer.</p>

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

<p>After executing a mortgage on all his chattels, the mortgagor made an assignment for the benefit of his creditors. The assignee thereunder, with the acquiescence of the mortgagee, took possession of the chattels and proceeded to sell them by virtue of his powers as such assignee. After he had sold part of them, the mortgagee obtained an injunction against any further sales, on the ground that the remaining chattels were insufficient to satisfy the mortgage thereon, which proved to be the fact afterwards. — SM, that the assignee was entitled to deduct, from the proceeds of his sale, the costs legally incurred by him under the assignment and consequent sale, as against the mortgagee.</p>

<p>Bill for injunction.</p>

<p>1. Defendants were the president, vice-president and treasurer of a corporation, for the development and sale of a tract of land, which had assumed the payment of a mortgage thereon. Differences arose between them and complainant, who was the secretary and sales agent of the company, which, defendants allege, stopped the sale of the lots. The interest on the mortgage was not paid, and it was foreclosed, and defendants bought the premises at the foreclosure sale for about the amount due the mortgagees thereon. — Held, that they could not hold the title for their own benefit, but only as trustees for complainant and the other corporators; and that a preliminary injunction restraining them from disposing of or encumbering the lands should be continued.</p> <p>2. That the attitude of the parties required the court to appoint a stranger the receiver of the property pendente Hte.</p>

<p>On September 21st, 1885, a bill was filed against the defendant, a mutual fire and marine insurance company, under which it was afterwards decreed to be insolvent, a receiver appointed, and a reference made to have its condition and the amount of its fire and marine losses ascertained. On exceptions to the master’s report — Held,</p> <p>(1) That, whether or not the company had a right, by virtue of its charter, to keep the two kinds of insurance and the assets of each department distinct,, the fact that it had adopted a by-law to that effect and so notified each policyholder and so advertised, and always kept the assets separate, estopped the policy-holders and creditors from now questioning the legality of such course.</p> <p>.(2) That a policy-holder could not, after the company had in fact become insolvent, by an agreement with the officers of the company and paying a small percentage, obtain a cancellation of his policy and a surrender of his premium notes, and thus escape all future liability to assessment thereon, although the company had not then been declared to be insolvent.</p> <p>(3) That, under Bev.p. 191 $ SO, a bona fide judgment creditor is entitled to preference in payment over the general creditors ; but that such preference does not include a judgment obtained against the company on the day when the court took control thereof by issuing an order restraining the company from transacting business.</p> <p>(4) That, where a loss occurred after the appointment of the receiver, such policy-holder is not entitled to share in the distribution of the assets.</p>

<p>1. Unless circumstances control, when witnesses are equally entitled to credit, the greater number must control.</p> <p>2. Katzenbach & Oo. held a mechanics lien on the premises of Holt; Manning had a mortgage thereon which was subsequent; Holt said to Katzenbach & Co. that if they would release their lien, Manning would take a new mortgage for a larger amount, and would endorse for Holt, and that he would pay that part of their lien still in book account, in cash, and that part in notes, as they became due, out of the money which he would receive by such mortgage and endorsements ; the release was made and delivered ; Manning had made such promise to Holt as Holt represented to Katzenbach & Co.; but Manning, after receiving said mortgage, and endorsing for Holt to a-n amount equal to the book account, refused to endorse further. — Held, that Katzenbach & Co. were entitled to the benefit of the promise of Manning, and that, unless he so endorsed, he would be enjoined from pleading such release to an action at law on the lien claim.</p> <p>3. Katzenbach & Co. inquired of two of the officers of the bank to which Holt was very largely indebted, and for which Manning was liable as endorser, respecting-Holt’s standing, and were induced to believe that he was in good condition; this bank then expected to accommodate Holt still more, on the endorsement of Manning. Shortly after the execution of the release and the mortgage, the bank did so accommodate Holt with Manning’s endorsement, and in a few days after the last loan procured an assignment of the mortgage from Manning as collateral; the bank officers admit that, when they talked to Katzenbach & Co. of Holt’s ability to meet his engagements, they knew that he was embarrassed. — Held, that the bank cannot plead such release, both because of the absence of good faith and valuable consideration.</p>

<p>The presence, in a written contract, of a provision for liquidated damages in case of its breach, does not, of itself, necessarily render the contract an alternative one, nor give to the party bound the option to pay the damages and break his contract.</p>

<p>1. The testimony was held to establish that, although the testator was in the last stages of consumption, he possessed testamentary capacity.</p> <p>2. It was also held that the evidence did not sustain the insistment that fraud was practised upon the testator.</p> <p>3. The attesting clause did not state that the witnesses subscribed their names in the presence of the testator, but the proofs established that they signed on a bureau, at the foot of the bed on which the testator lay, so supported that he could see the motion of the pen on the paper, although he could not distinguish the letters the pen was forming, and that the testator’s eyes were open during the signing, and that at its conclusion he instructed his uncle, who was named as an executor in the will; to take the custody of the paper. It was held that such signing was sufficient compliance with the requirement of the statute that the witnesses shall sign in the presence of the testator.</p> <p>4. Where, after the testator has signed the will in the presence of the witnesses, one of them, in the presence of the other, asked if the paper was all right, and the testator replied, “ That is all right, John, that is my will,” it was held that the instrument was sufficiently declared to be the testator’s last will.</p>

<p>1. The validity of a will was sustained where it was made to satisfactorily appear that, although the testatrix was addicted to the use of morphine, at the time the will was executed she was not under the influence of that drug, and was of good memory and understanding, and had reasons for the disparity in her bequests to her daughters, which were founded on fact, and were not without weight.</p> <p>2. The habitual use of morphine, by the testatrix, was of such a character as to constitute reasonable cause for contesting the validity of the will, and justify the court in ordering that the costs and expenses of the litigation be paid out of the estate.</p>

<p>1. By statute, in this state, a married woman, who was married in 1879, and who has not had issue born alive, may make a will disposing of her entire estate, real and personal, without the consent of her husband.</p> <p>2. Proof of extreme physical debility of a testatrix is not sufficient to establish incapacity to make a will.</p> <p>3. Where the' testatrix can remember her near kindred and appreciate their claims upon her, and comprehend the amount and character of her estate, and intelligently direct its distribution, she has sufficient capacity to make a valid will.</p> <p>4. A will will not be held to be the product of undue influence where a testatrix, suffering from extreme physical debility, held communications, upon the subject of making a will, with her sisters and husband, who were interested in influencing her testamentary disposition, but, at the same time, exhibited strength of mind, in resisting the importunities and remonstrances of her husband, in making a natural will, and in intelligently and properly transacting other business.</p> <p>5. Fraud, in making a will, must be established by a fair preponderance of proof.</p>

William Wilkins, a resident of the city of Newark, died Dec. 22d, 1884, leaving a will dated May 21st, 1878, with a codicil dated Sept. 2d, 1879, which will and codicil were admitted to-probate by the surrogate of Essex county Jan. 2d, 1885.

<p>A preliminary, mandatory injunction will be ordered only in case of extreme necessity.</p>

<p>1. The grantee of a mortgagor, having taken his conveyance subject to all the “payments, conditions and agreements” of the mortgage, cannot, under a claim of paramount title, retain possession of the premises against the purchaser at the sale under foreclosure, he having taken possession under the mortgage and by virtue of such stipulation.</p> <p>2. Query. Is not a defendant in a foreclosure suit, who claims to be possessed of a paramount title to the premises, bound to set up such title in such proceeding ?</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in the name of Nixon v. Walter, 14 Stew. Eq. 103.</p>

Smith, 15 Stew. Eq. 348. Letters of administration of the personal estate of Zachariah Z. Smith, late of the county of Morris, deceased, were granted by the surrogate of Morris county to Richard H. Stephens and Stephen Babbitt on the 14th day of October, 1884. ■ On the same day, the surrogate made an order limiting the period for the presentation of creditors’ claims against the estate at nine months from the date of the order, which order was duly published by the…

<p>1. An unrecorded mortgage given by an ancestor retains its priority over a judgment recovered against the heir-at-law during the lifetime of the ancestor, although the judgment creditor had no notice of the mortgage when he recovered his judgment.</p> <p>2. The registry law applies only in cases where the interest of the subsequent judgment creditor, mortgagee or purchaser can, at the time he acts, be affected by want of notice of the unrecorded mortgage.</p> <p>3. If, after the death of the ancestor, a sale of the heir’s estate in the ancestor’s lands is made under such judgment, a bona fide purchaser without notice of the unrecorded mortgage will take free from the lien of such mortgage.</p> <p>4. A judgment against the heir-at-law recovered after the ancestor’s death will displace the unrecorded mortgage.</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in Osborne v. O’Reilly, 15 Stew. Eq.</p>

Ou appeal from a decree advised by Vice-Chancellor Bird, who filed the following conclusions : I regret to say that there seems to be no path that I can discover which will lead me to advise a decree looking towards some final adjustment of the controversy between these parties. The bill is so framed that, as I understand the evidence, I can only advise that the bill be dismissed.

Harriet E. Manning died October'19th, 1883. Her will, dated April 24th, 1883, was proved December 5th, 1883. John E. Hawkins was appointed administrator cum testamento annexo December 14th, 1883, and was succeeded by William H. Smith, one of appellants, May 7th, 1885. ■ The administrator filed a petition in the orphans court for sale of land to pay debts October 28th, 1885, and an order to sell was made June 17th, 1886.

55 per month; and the appeal- also brings up the order for alimony pendente lite, at $10 per week. The decree was made on bill filed November 26th, 1886, by Catharine Beck against Herman Beck, for a divorce from bed and board for extreme cruelty, and alimony and maintenance were also asked. Answer was filed denying the acts of cruelty charged, and setting up counter charges. Evidence was taken orally before the vice-chancellor, and the above decrees were made.

<p>Appeal from the order of the court of chancery, made upon the advice of Vice-Chancellor Van Fleet, whose opinion is reported in Lehigh Coal and Navigation Company v. Central Railroad Company, 14. Stew. Eq. 167.</p>

<p>On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in Dringer v. Receiver of Erie Railway, 15 Stew. Eq. 573.</p>