Volume 45 — New Jersey Equity Reports

On motion to dissolve injunction. Prior to October, 1884, the complainant, who was the owner of a strip of land fronting fifty feet on Main street, in the town of Phillipsburg, and running back, southerly, that width, two hundred and twenty feet, to Union street, conveyed to Christopher S. Winters the westerly half of that land by deed, which, in the language of the bill, contains the following reservation: “ Reserving the right to the free use of the light and air over the…

<p>On order to show cause why an injunction shall not issue to restrain the defendant from taking proceedings to enforce a judgment at law.</p>

<p>On motion to dismiss the bill under Rule 224.</p>

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

On bill for injunction and demurrer thereto. The complainant is mortgagee in possession of three lots of land situate upon one side of a eul-de-saa at the end of Mont-rose avenue, in Jersey City. Upon the opposite side of this eulde-sae the land is owned by the demurrant. The eul-de-sae is a public highway, duly dedicated to the public use and accepted by the proper authorities of Jersey City.

<p>1. A father verbally agreed with his son that if the son would live upon a designated farm, which belonged to the father, and repair, cultivate and improve it at his own expense, that he would give the farm to his son when he (the father) should be done with it; that he would either convey or devise the farm to the son. In reliance upon this agreement, the son entered into possession of the farm, and repaired, cultivated and improved it for twenty years, till he died, and thereafter his wife and his heir-at-law continued the performance of the contract upon his part, till the father died. — Held, that the contract was a valid one, which, because of the performance of it by and in behalf of the son, although not in writing, is enforceable in equity.</p> <p>2. The son’s widow will be entitled to dower in the farm.</p> <p>3. The widow and the heir-at-law of the son are proper parties complainant to a bill to specifically enforce the performance of the contract.</p> <p>4. The estates of the heir and the widow spring from a common source, and are not antagonistic to each other or so distinct and dissimilar that the widow and heir cannot join as complainants in a single suit for specific performance without making their bill multifarious.</p> <p>5. Money was paid to the son’s wife in May, 1849, and was expended by the son and his wife in the repair and improvement of the farm that his father had agreed to convey or devise to him. — Held, that such money was the property of the son, and that, after his death, to a bill by his widow and his heir-at-law, for specific performance of the contract between the father and son, containing an alternative prayer for the repayment of such moneys, the husband’s personal representative must be made a party to take such moneys if repayment thereof shall be decreed.</p> <p>6. A bill for specific performance, with a prayer for such alternative relief, is not multifarious.</p> <p>7. A contract for the sale of lands may be specifically enforced against an alienee of the vendor, where such alienee has accepted a conveyance, either without having paid valuable consideration for it or with notice of the contract.</p> <p>8. Where the complainants’ right to specific performance of a contract for the conveyance of certain lands accrued in the year 1877, and in that year the complainants were evicted from the possession of the lands under and by virtue of a judgment which was then recovered against them in ejectment at law, in favor of the defendants, and thereafter for nine years they failed to apply to this court to compel the specific performance of the contract, or for other equitable relief — Held, that unless their laches shall be satisfactorily explained and excused, relief in this court will be denied them.</p> <p>9. The judgment in the action of ejectment at law did not settle the equitable claims of the complainants.</p> <p>10. By virtue of Rev. p. 638 § 11, a married woman may maintain a suit for specific performance of a contract to convey land to her, in her own name, without joining her husband as a party.</p>

<p>On application for leave to file a bill of review.</p>

<p>On final hearing on bill and answer and proofs taken in open court.</p>

<p>1. Where two or more executors exhibit a joint account for settlement, and procure the same to be finally settled and allowed, they stand jointly liable for the balance shown by the account to be in their hands.</p> <p>2. A sentence or decree allowing an account is conclusive upon all parties, except fraud or mistake be proved.</p> <p>3. An account, which appears on its face to be joint,' may be shown to be separate, and where an account is stated both ways, first jointly and then separately, the court may, if such appears to have been the intention of the accountants, treat it as a separate account.</p>

<p>1. An attaching creditor, having a lien on the property of his debtor by force of the Attachment act, is entitled, prior to the recovery of judgment, to the aid of a court of equity in setting aside a fraudulent conveyance or encumbrance.</p> <p>2. But, in such case, as his right to a lien rests entirely on his own act and not on a judgment, he is bound to show affirmatively that he is a creditor of the defendant, and also that as a creditor he has, in the mode pointed out in the statute, acquired the lien which he asserts.</p> <p>3. No one but a creditor for a debt of definite amount, and having a right to maintain an action at law for his debt, can acquire the lien given by the Attachment act.</p> <p>4. In the absence of statutory provision otherwise directing, a stranger to a contract under seal cannot maintain an action at law on it.</p>

<p>On application for leave to amend bill and to enter a new final decree.</p>

<p>On petition to set aside final decree granting a divorce.</p>

<p>A land-owner is not entitled to an injunction restraining the opening of a highway through his dwelling, where it appears that there was a dispute between him and the commissioners as to the exact location of the highway before he began to erect it, and that they caused the highway to be surveyed and. defined by stakes when he had done but little work on it.</p>

<p>1. Unilateral contracts for the purchase of lands may be enforced by the vendor.</p> <p>2. In such case, the complainant, not being bound, must show that he is not only willing to perform all the stipulations on his part, but that he has tendered himself ready to perform them before filing his bill.</p>

<p>On bill for construction of a will.</p>

<p>On bill for injunction, and for specific performance.</p>

<p>A mortgage on lands in the city of Rahway, assigned to the trustees for the-support of public schools, is prior in lien to assessments for improvements on the premises afterwards imposed by the city, although the assignment was-never recorded.</p>

<p>An action at law lies on a negotiable promissory note transferred to the holder by the widow of the payee without endorsement, and should be brought in the name of the payee’s representative.</p>

<p>A husband who had resided a long time in New Jersey went to Dakota and there procured a divorce. When he desired to convey some of his lands in this State, he discovered that there was some doubt as to his ability to give a perfect title unless his former wife, Ellen, should join in the deed. This led ■to an agreement that he should pay her $1,750 a year for the support and maintenance of herself and five of their children, and that she should join in the execution of any deeds or mortgages, in case he desired to sell or mortgage either of three certain lots. He presented certain deeds and requested her to join in the execution of them, but she refused to do so until she could consult her counsel. — Held, that this is not such an absolute refusal as to bring the case within the clause in the agreement that she shall forfeit all right to the provisions made for her under said agreement.</p>

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

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

<p>On bill for injunction, and answer.</p>

<p>1. A general allowance of commissions, without direction as to how they shall be divided, does not amount to a determination that they shall be divided by equal shares.</p> <p>2. Where the court, at the time it fixes the amount of the commissions to be allowed, also determines, upon due notice, the proportions in which they shall be divided, and records its determination on the account, the action of the court amounts to a judgment, and will not be changed, except fraud or mistake be first shown.</p>

<p>On appeal from decree of Warren county orphans court.</p>

<p>1. The act (Rev. Sup. p. 834 § 42) authorizing the chancellor to appoint a receiver if a railroad neglects to run daily trains, confers such power upon the court of chancery and not upon the chancellor in his personal capacity.</p> <p>2. Tlie chancellor can refer, in the ordinary course, such matter to a vice-chancellor or to a master for hearing and an advisory opinion.</p> <p>3. A vice-chancellor cannot entertain jurisdiction over a case except when referred to him by general or special order.</p> <p>4. But when the case was heard by the vice-chancellor without objection,, and the chancellor adopted his advice and signed a decree — Held, that it was-too late to raise on appeal the question as to the vice-chancellor's right to hear the case.</p> <p>5. The proviso in the act above referred to exempting sea-side railroads from ■the regulation of the body of the act, held to be constitutional.</p>

<p>1. The complainants alleged that the defendants, who were manufacturers of pottery, engaged to pay them, as superintendents, in addition to a stated annual sum, ten per cent, of the net profits of the business, and guaranteed that the same should amount to the annual sum of $2,000 for each of them. They also alleged that the defendants had refused to account and make discovery as to the such net profits. These allegations were admitted by an answer, setting up losses sustained by the defendants from the negligence and want of skill of the complainants. — Held, that, upon the face of these pleadings, the complainants were entitled to an account and discovery, and that the losses claimed by the defendants constituted a counter-claim for unliquidated damages which could not be tried in equity.</p> <p>2. Held further, that the bill being for relief as well as for discovery, and it having been made to appear at the final hearing, to the satisfaction of the ■ complainants, that the net profits were not large enough to give them an interest in them, the court would decree a payment to each of the complainants of the annual sum, with interest, of $2,000, according to the defendants’ guarantee. In view of the circumstances of the case, and of the statute authorizing recoupment — Held, that the decree thus given should be stayed until the defendants should have had an opportunity of testing at law their counterclaim for damages.</p>

A restraining order was granted in the court of chancery, enjoining the defendant from proceeding to execute a judgment obtained by him against the complainant, until a motion for an injunction could be heard and decided by the chancellor. After the hearing and the lapse of some months, the injunction was refused, but the stay order was continued until the sitting of the court of errors. There was an appeal from the decree refusing the injunction.

<p>1. It is the notice of appeal filed in the court of chancery that is the appellate act giving the court of appeals cognizance of the case.</p> <p>2. The chancellor, after an appeal from an interlocutory order, may proceed to final hearing according to the rule of his court; but the party taking such-final decree will run the risk of its being set aside if the interlocutory order; shall be reversed by the higher’court.</p>

<p>1. In a strict foreclosure suit at common law the decree simply cut off the equity of redemption and foreclosed the mortgagor from redeeming the estate by payment of the mortgage debt; thereafter the mortgagee was in, as of the estate granted and conveyed by the mortgage, discharged from the condition of defeasance, and he held the estate as if the original conveyance had been absolute</p> <p>2. The purchaser at a foreclosure sale of the mortgaged premises takes the place of the mortgagee in strict foreclosure át common law. His title relates back to the time of the execution of the mortgage. He succeeds as well to the title and estate acquired by the mortgagee, by the delivery of the mortgage deed, as to the estate the mortgagor had at the time of the execution of the mortgage.</p> <p>3. The acts of 1881 and 1882 (Rev. Sup. pp. 489, 490), which subject mortgaged estates to conditions of redemption in the hands of purchasers at foreclosure sales, being unconstitutional as applied to antecedent mortgages — Held, that the purchaser at a sale under proceedings for the foreclosure of a mortgage made prior to these acts, took the estate of the mortgagee unaffected by the conditions of redemption created by those acts, although at the foreclosure sale enough was realized to pay the prior mortgage in full and a small sum upon a second mortgage which was made after these acts took effect.</p>

Those besides the complainant who, so far as are known, claimed any interest, have conveyed that interest to Burk, one of the defendants. Burk claims to trace his title, through the ancestors of his grantors, to' a deed made by one Silas Swain, in the year 1768, to Jeremiah Learning and fifty-one others. This deed was not recorded until the 18th day of October, 1823, about fifty-five years after its execution. What was done' with it during this long interval does not appear.

<p>On appeal from the decree of the ordinary, affirming the order of the orphans court of Salem county, refusing to admit to probate a paper propounded as the last will and testament of Ruth W. Buzby, deceased, reported in 16 Stew. Eq. 154.</p>

The bill of complaint was filed to restrain the defendant, William T. Bailey, and another, from in anywise filling in, blocking up and obstructing an alleged ancient water-course running over lands of the complainant, crossing a public highway called Lee’s lane, and on and over lands of the defendant; and commanding them to remove the obstructions now existing and placed therein by them.

Farr’s interest was one-half, the others each one-fourth, each of whom gave a note to Farr for $7,500, with the agreement that said notes were to be paid out of their respective shares of the profits of the business. The name of the copartnership was J. C. Farr & Co., and this firm was the successor to the firm of Sullivan & Co., the debts of which firm were assumed by the former.

43, and finding himself financially embarrassed so that he was unable to pay, applied to the defendant, his nephew, Mr. Shull, for aid. I think the testimony beat’s me out in the conclusion that Mr. Cake desired a loan of the defendant, and offered this mining-property — that is, the stock of the mining-property, as security for the loan.

<p>On appeal front a decree advised by Vice-Chancellor Bird, whose opinion is reported in Hartshorne v. Thomas, 16 Stew. Eq. 419.</p>

Ware paid $100 of the purchase-money, and took a receipt therefor from Evans in these words: “Received, 12 mo., 13th, 1865, of Adam P. Ware, one hundred dollars, on-account of a lot of land sold him; the deed to be hereafter made to him, and. when delivered he is to give his note for $58 additional.” Ware was let into possession, and he cut and sold off all the-timber. He has remained in the possession ever since.

Sarah G. Parker died, leaving two sons, James and Henry, and leaving a large estate valued at over $80,000, nearly all of which was in stocks, bonds, mortgages and other securities. She made her home with James, but confided nearly all of her estate to the care and custody of Henry, trusting him to make investments for her. In no other respect did she manifest any preference.

On bill for construction of a will. On appeal from a decree advised by J. D. Bedle, Esq., advisory master. The question at issue arises upon the fifth and sixth clauses of the will of Frederick Swift, deceased, which are in the following words: “Fifth.

<p>On appeal from a decree of the chancellor, whose opinion is reported in Hagerty v. Lee, 18 Stew. Eq. 1.</p>

In May, 1885, George M. Douglass recovered a judgmeut in the supreme court of this state against James B. Willison for $2,440.53, upon which execution was issued and returned wholly unsatisfied. Willison was a builder and contractor. Shortly after the entry of the judgment against him, he gave up doing business in his own name, and thereafter took all contracts and did all his business in the name of his wife, Julia B. Willison.

<p>1. Construction of the acts of March 27th, 1874, and February 25th, 1880, concerning evidence: If the representative offers himself as a witness on his own behalf, and testifies to any transaction with or statement by his testator or intestate, the other party may be a witness on his own behalf as to all transactions with or statements by such testator or intestate, which are pertinent to his case.</p> <p>2. But if the representative offers himself on his own behalf, and does not testify to any such transaction with or statement by his testator or intestate, the other party is excluded from testifying with regard to any such transaction or statement.</p> <p>3. Either party may be admitted under the act of 1880 to testify on his own behalf within the range prescribed by that act, whether the other is a witness or not.</p>

Millville Insurance Co., 16 Stew. Eq. 522. Several appeals were taken from various portions of the decree, relating to the distribution of the assets of the defendant company, which had been declared insolvent on bill filed by the complainant, a judgment creditor. The appeals were argued together.

<p>On appeal from an order advised by Vice-Chancellor Van Fleet, directing the appellant to surrender a child twelve years and eight months old to its parents.</p>

<p>A married woman made a lease containing an agreement that she would sell a part of the leased property for a certain sum, if the lessees elected to buy within five years. After the death of her husband she conveyed all the leased premises to a third party, her deed containing a clause that it was subject to the said lease and the said agreement contained therein. Afterwards, the lessees, within the prescribed time, elected to purchase the part as above mentioned, and failing to get a deed, filed their bill for a specific performance of the agreement. — Held, that the reference to the original agreement contained in the deed made by the widow was equivalent to a new execution of that agreement after her condition as feme covert had ceased to exist, and bound her and her grantees.</p>

S. Gummere, Esq., advisory master, who filed the following conclusions: The complainants are judgment creditors of the defendant, John H. Hagerman, and have exhibited their bill to set aside two conveyances made for the purpose of transferring the title to certain lands at Asbury Park from said Hagerman to his wife, the defendant, Sarah Hagerman.

<p>1. An executor included in the inventory of the estate of testator commercial paper made by him and found in the possession of testator at death. In accounting, the executor did not charge himself with the amount of such paper. — Held, that evidence to explain away and overcome the presumption arising from the possession of such paper and the solemn admission of liability arising from proving the inventory, ought to be clear, consistent and preponderating. In the absence of such evidence the executor should be charged therewith.</p> <p>2. Tichenor v. Tichenor, 16 Stew. Eq. 163, affirmed, but without determining whether the accounting executor was competent to testify to transactions with or statements by testator.</p>

<p>One who undertakes to settle a debt for another cannot purchase it on his own account.</p>

<p>On exceptions to a master’s report upon exceptions to an answer for insufficiency.</p>

<p>On bill to construe will.</p>

<p>On bill to quiet title.</p>

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

On order to show cause why an injunction shall not issue to restrain the defendant from discharging proposed sewers into the Passaic river.

<p>1. Where a husband purchases land with the separate estate of his wife, taking a deed in his own name, a trust results in favor of the wife.</p> <p>2. A resulting trust arises by operation of law from contemporaneous circumstances which give the legal and equitable titles different directions, and it must therefore arise at the instant the deed is taken and the legal title i.s vested in the grantee, and the situation of the transaction when the title passes is to be looked to, and not the situation preceding or following that'time.</p> <p>3. A resulting trust may be proved by parol, but the proofs must be full, clear and satisfactory.</p> <p>4. If a wife, in whose favor a resulting trust may be established in land, the title to which is in the husband, with knowledge of the equity to which she is entitled, or supposing the legal title of the land to be jointly in her husband and herself, voluntarily joins in a conveyance of that land, she cannot after-wards, as against her grantee or his assigns, establish a resulting trust in the land.</p>

<p>1. A conveyance of a contingent or executory interest, which is made lawful by Rev. p. 167 § 82, carries with it the estate which, but for the conveyance, would vest in the grantor upon ihe happening of the contingency, although the deed may not contain that which will estop the grantor from claiming an after-acquired estate.</p> <p>2. Where there was a devise to A for the joint lives of himself and B, and in case of the termination of those joint lives by the death of B, to A in fee; and in case of the termination of those joint lives by the death of A, to C and D in fee, and if 0 be then dead, to D alone in fee, the contingency is not as to the person who shall take, but as to the event upon the happening of which a certain person shall take.</p> <p>3. The test of mental capacity to execute a deed is, whether the person executing it possesses sufficient mind to understand, in a reasonable manner, the nature and effect of the act he is engaged in.</p> <p>4. A gift of a contingent right to a remainder in fee in real estate worth $10,000, by a man of ample fortune, who is in full possession of his faculties and menial strength, to an uncle who has a life-interest in the real estate and also a contingent rig-ht to the fee, and to whom the nephew is bound not only by blo.od but also by intimate friendship, when the 'deed is executed and acknowledged before a reputable lawyer, who is one of the masters of this court, and thereafter is immediately recorded in the public records of deeds of the county in which the land lies, will be sustained.</p> <p>5. Where one who has a right to demand an explanation of circumstances that surround a transaction alleged to be fraudulent, purposely delays the exercise of such right until all those who could have explained those circumstances are dead, he will not be permitted, in a court of equity, to insist upon that explanation.</p>

<p>On bill for construction of a will.</p>

<p>1. The provision of the sixth section of the act concerning corporafions, approved February 14th, 1846 (Nix. Dig. p. 151), which was incorporated in the Revision of 1875 (Rev. p. 178 § 6), declaring that the charter of every corporation which should thereafter be granted by the legislature, should be subject to alteration, suspension and repeal, reserves to the legislature the authority, in its discretion, for proper ends, to make any alteration or amendment of a charter granted subject to it, which will not defeat or substantially impair the object of the grant, or any rights vested under it.</p> <p>2. Such alteration or amendment may be made by supplement to the act entitled “An act to authorize the formation of railroad corporations and regulate the same.” Rev. p. 925.</p> <p>3. By a charter granted in 1867, the Montclair Railway Company was incorporated and empowered to build a railway, but at the same time was required to construct and maintain bridges where highways should cr-oss its railway. In 1875, upon foreclosure of a mortgage, the property and franchises-of that company were sold and transferred to the Montclair and Greenwood Lake Railway Company, then organized in pursuance of Rev. p. 916 § 56, and in 1878, upon another mortgage foreclosure, the same property and franchises-were sold and transferred to the New York and Greenwood Lake Railway Company, also organized under Rev. p. 916 § 56. One of these companies-graded a right of way across an avenue in Montclair township, Essex county, making a cut twenty-two feet deep and sixty-nine feet wide through the avenue, but did not lay rails upon it. The last named of these companies now owns and controls that right of way. By a supplement to the act to authorize the formation of railroad corporations and regulate the same (Rev. p. 925), which was approved in 1887 (P. L. of 1887 p. 226), after the said right of way was graded and said cut made, it was made the duty of any company that owned or controlled a right of way for a railroad, which had been graded in whole or in part, but upon which tracks had not been completely laid, to construct a bridge over such right of way where a public highway should cross it, and provision was made that the duty thus imposed may be specially enforced by bill in the court of chancery, or, at the option of the corporation charged with the care of the highway, such latter corporation may build the bridge and recover the cost thereof from the railroad company by suit. — Held, that the supplement referred to imposed a duty upon the New York and Greenwood Lake Railway Company which was reasonable, and which did not defeat or impair the object of the grant to the Montclair Railway Company, to which the New York and Greenwood La.ke Railway Company succeeded, or any vested rights under it; and, also, that the court of chancery, by virtue of the provisions of that supplement, had jurisdiction to compel the specific performance of the duty imposed.</p> <p>4. It is not necessary, in legislation amending, statutes, to set forth the amended statute and also the statute as it was before the amendment. It is ■sufficient to set forth the amended act in full.</p>

<p>1. Where the duty of d trustee is involved in doubt, it is his right to ask and receive the aid and direction of this court.</p> <p>2. Where the matter to be determined presents questions of title in which other persons are interested, those persons should be made parties to the suit, otherwise the court should either stay the suit until such persons have been brought before it, or limit its determination of the questions presented by the trustee’s need of present direction.</p> <p>3. Where a testator provides that his executor shall have the “care and custody” of his estate, “and pay all the legacies as herein directed” and then, after giving a single specific legacy, providés that the net income of his estate shall be paid in several portions to certain persons at stated periods — Held, that the executors take the legal estate in trust to pay the income as directed.</p> <p>4. The devise of such income to a testator’s widow, being without limitation as to time, either in the devise or by other disposition of the income or of the land itself, is tantamount to a devise to her of the equitable fee of the land itself, and she being now dead and the purpose of the trust accomplished, her heirs may have a conveyance of the legal estate from the trustees.</p> <p>5. By express provisions of the will the remaining persons entitled to shares of the net income take for their lives, and as they are yet living and as some of those who should be heard as to the disposition of the estate at their deaths may not yet be in existence, or as death may remove all doubt as to the future disposition of the estate before the executor needs further direction, such further direction will not now be given.</p>

<p>On application for injunction, heard on bill and affidavit, and answer and affidavits.</p>

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

<p>1. Where the common law is in force a divorce a mensa et thm-o does not change the property rights of the parties; its only effect is to compel'the parties to live apart, and to deprive the husband of his control over his wife.</p> <p>2. A divorce from the bond of matrimony puts an end- to any right which either has acquired in the property of the other by the marriage, unless its effect is restrained by statute.</p> <p>3. Where a corporation is organized under a statute authorizing the formation of corporations to accumulate a fund to be paid to the widows and children of deceased members, neither the corporation, nor a member, nor the two combined, can divert any part of the fund from those for whose benefit it was accumulated.</p> <p>4. A contract made by a benevolent corporation with a member canrot be enlarged or changed except by the consent of both contracting parties.</p> <p>5. Where the contract made by a benevolent corporation with a member provides that the member shall not change his beneficiary without the surrender of his certificate, and the consent of the corporation, the beneficiary cannot be changed except in the manner provided for in the contract.</p>

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

<p>1. Where a will directs that in case A’s wife shall survive him an annual payment shall be made to her during her widowhood, but shall cease at her remarriage or on her death, if A and his wife are divorced, so that when A dies the woman who was his wife does not become his widow, she will not be entitled to the legacy.</p> <p>2. Where a testator directs that the interest of a sum of money shall be paid to his son A for life, and on A’s death that the principal shall be divided among his (the testator’s) other then surviving children and issue of any deceased child, A’s issue are entitled to a share of the principal.</p>

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

<p>The lien given by our statute to mechanics and others who do work or furnish material in the erection of a building, extends to legal estates and interests only, and does not embrace equitable estates or interests.</p>

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

<p>1. The principal object intended to be accomplished by the adoption of paragraph 225 of the Rules, requiring a demurrant to state the particular grounds of his demurrer, was to secure greater fairness and thoroughness in the discussion of questions arising on general demurrer than could be had under the old practice.</p> <p>2. Under paragraph 225 a,simple statement of want of equity, in the usual language of a general demurrer, will constitute a sufficient specification of the ground of the demurrer in cases where the court finds, on looking at the complainant’s bill, that his right to relief is doubtful or uncertain, but where the defect is obscure or latent to such an extent that the court, on inspecting the complainant’s bill, cannot readily discern it, there the demurrant will be required to make a more explicit statement of the ground on which his demurrer is founded.</p>

<p>On final hearing on bill and answer and proofs taken in open court.</p>

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

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

<p>1. The bank discounted a note of $1,500 of A. G., the husband of G., the defendant. A. G. gave checks on this fund until it was reduced to $846.06, when he died, leaving a will in which he made the defendant his sole legatee and executrix. She procured this $846.Q6 and other moneys to be transferred to her individual credit in the same bank. When the $1,500 note fell due, there was to the credit of the defendant more than the amount of it. Nor had the amount of her credit been reduced below the §846.06 at any time. The bank charged the note to her account. The defendant brought an action at law and recovered judgment for the entire sum due on the account prior to the said charge. This bill is filed to restrain the collection of the judgment except so much as is in excess of the $846.06. It appearing that the estate of A. G. has been declared to be insolvent — Held, that the bank is entitled to the relief prayed for.</p>

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

<p>1. The ordinary prohibitory injunction will not be granted, much less a. mandatory one, where the allegations of the bill do not clearly and fully lay the foundations therefor.</p> <p>2. The purchaser of real estate takes subject to the doctrine of caveat emplor to the extent of the ordinary physical conditions of the property at the time-of the purchase.</p>

<p>1. In case a grantee accepts a conveyance of lands by a deed in which certain trusts are created, though the title be imperfect, and he afterwards buys, and takes another title in his own name so that the title in him is complete,, and continues to hold without renouncing the trust, the presumption is, that the latter purchase was made in aid of the former trust.</p> <p>2. The principal is bound by the knowledge of hi§ agent.</p>

<p>1. Conveyance of real estate by a debtor to a corporation of which he was the principal stockholder and sole manager held void as against his creditor /under the circumstances stated in the conclusions.</p> <p>2. Defendant held a judgment against a principal and surety, and a levy upon both real and personal property. The personal property belonged to the principal debtor, and the real estate to the surety. Complainant held a judgment'and execution against the surety, and a levy upon the real estate,</p> <p>■subsequent to the defendant’s judgment. — Held, complainant had an equity to ■compel defendant to proceed to satisfy his judgment out of the personal prop-erty so levied upon.</p> <p>3. A receiver appointed by a common law court, after judgment upon supplemental proceedings, upon a return of the execution, is vested with the title to personalty only.</p>

<p>A testator gave the residue of his personal estate to his widow for life, with remainder to his children, and appointed her one of his three executors. In 1874 the orphans court allowed their account, which set off $7,200 to the widow as her portion. The securities were given to her, and she collected ■them and re-invested the proceeds in her own name. At her death, in 1884, the funds were claimed by her administrator as her own property. They consist, in part, of a note for $2,500, made by her administrator, who is one of the remaindermen, and who is insolvent, and one for $1,500, made by complainant and his wife, the latter being one of the remaindermen. The widow’s next of kin and the testator’s remaindermen are substantially the same persons. — Held, (1) that the presumption of law is that the funds found in the widow’s possession at her death are the residue of testator’s personal estate, there being no proof that she had any property of her own; (2) that the decree of the orphans court did not vest the title to this residue absolutely in the widow; (3) that the mere fact that those who are claiming or are entitled to the funds, either as remaindermen of the testator or as next of kin of the widow, are the same persons, does not prevent relief sought on the ground of the administrator’s admitted inability to pay his note for $2,500, which exceeds-his share of said remainder, and the alleged inability of complainant to pay his note of $1,500, which exceeds his wife’s share thereof; nor does complainant’s delay in filing his bill estop him; nor the alleged collusion between him and the administrator to gain time to pay their notes, because the other remaindermen might have called them to account promptly.</p>

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

<p>The assignee of a mortgage on the undivided four-fifths of a house and lot in the city of N,ewark, made defendants to its foreclosure the owner of the equity of redemption of said four-fifths, a judgment creditor of said owner, and the holder of a second mortgage on said four-fifths, who was also the owner of the remaining one-fifth interest in the premises. — Held, (1) that a prayer for partition of the premises, in the ordinary form, did not render the hill multifarious; (2) that a claim for moneys due to the holder of the second mortgage from the assignor of complainant’s mortgage, without an averment of an agreement to that effect, could not be set-off.</p>

<p>1. In the absence of a voluntary acceptance by a defendant in execution of the position of bailee to the sheriff or constable holding the ifrrit of the goods proposed to be levied upon, there can be no valid levy unless the officer shall take actual possession of the goods, or assert such dominion over them as will make him a trespasser in the absence of the writ.</p> <p>2. A writ of execution from a justice’s court does not bind the goods of the defendant until an actual or constructive levy be made. A bare inventory without levy is insufficient for that purpose.</p> <p>3. A constable having in his hands an execution, issued by a justice of the peace, against the goods and chattels of an insolvent corporation, before decree of insolvency actually made, went to the factory of the defendant and attempted to levy upon the goods of the defendant, which were locked up within the warehouse, and, without effecting an entrance, made an incomplete inventory of them by a partial view through a small opening in a window. — Held, that the attempt to make a levy was a failure, and created no lien upon the goods as against the official receiver of this court.</p>

On final hearing, on pleadings and proofs taken before the court. This is a bill in the nature of an interpleader by the heir at law of a devisee in trust of real estate, asking for direction to whom he shall convey the trust estate. Perry Adkisson, the testator and devisor, was lost at sea in or about the year 1875. He left two children, twins, John Wesley Adkisson and Margaret Ann Adkisson, aged about five years, the children of a woman with whom he had been cohabiting..

<p>The bill is filed by an encumbrancer by judgment, asking to be subrogated to the rights of a prior encumbrancer by mortgage and judgment, whose claim it has paid. The question is, -whether, at the time of payment, complainant occupied such a relation to the encumbered property as to entitle it in equity to be so subrogated.</p> <p>The encumbered property is real estate, and prior to 1880 was owned by R. P. Terhune. About January 1st, 1880, Terhune conveyed to The R. P. Terhune Manufacturing Company, the defendant herein. At the time of this conveyance Terhune owed •complainant a debt upon which it afterwards, in November, 1880, recovered the judgment upon which it now relies. In March, 1888, it filed its bill in this court against Terhune and The R. P. Terhune Manufacturing Company and others, praying that the conveyance from Terhune to the company might be decreed to be fraudulent and void as against its judgment.</p> <p>In the meantime, however, namely, on or about April 1st, 1886, the manufacturing company borrowed of the defendant, Mrs. Gaskell, $3,000, and secured its payment by the joint bond ■of itself and R. P. Terhune, further secured by warrant of attorney to confess judgment, and by mortgage on the land in question, which was recorded in April, 1886. Judgment was entered upon this bond and warrant against both defendants in December, 1887. In January, 1888, the manufacturing company borrowed $2,000 of the defendant, Edward Linn, and secured it by the joint bond of itself and R. P. Terhune, with warrant •of attorney to confess judgment, upon which judgment was promptly entered, and executions upon both judgments were issued and levied upon certain personal property and also upon the real estate in question, but no advertisement or sale was made until several months afterwards. These mortgage and judgment creditors were made defendants to the bill so filed by complainant herein in March, 1888. On September 12th, 1888, decree was made in that suit declaring the conveyance from R. P. Terhune to The R. P. Terhune Manufacturing Company void as against complainant’s judgment; and that the mortgage and judgment of Mrs. Gaskell and the judgment of Edward Linn were good as against complainant’s judgment- and prior liens upon the real estate, they having the first execution thereon; and further decreeing that they should at once proceed to sell the personal property levied upon by their several executions or lose their priority upon the real estate over complainant’s judgment. The opinion is reported supra p. 565.</p> <p>From that decree the defendants in that case, other than Mrs. Gaskell and Edward Linn, on September 18th, 1888, took an appeal and duly prosecuted the same, and on the 10th day of May, 1889, the decree of September 12th, 1888, in favor of complainant, was in all things affirmed. 18 Stew. Eq. 344. In the-meantime, the defendants, Mrs. Gaskell and Edward Linn, had obeyed the decree of this court so far as they were concerned, and sold the personal property levied on by them, which produced enough to reduce the amount due on their executions to about $1,700, and to collect this balance, they advertised the real estate-for sale on November 7th, 1888, under both executions. The-threatened sale was adjourned, at the request of the complainant herein, from time to time, until February 8th, 1889, when the-amount remaining due was paid by complainant herein to the sheriff, such payment being accompanied by notice to the sheriff and to the attorney of Mrs. Gaskell and Edward Linn that complainant claimed the right of subrogation, and that it was not intended to satisfy the judgment and mortgage. Previous to this payment, complainant had requested still further adjournments of the sale, which had been refused, and had offered to pay the amount due to the attorney of the execution creditors, and had requested an assignment of their judgment; but the-attorney had declined to advise or permit his clients to assign or in any way to aid the complainant in being subrogated to his clients’ rights.</p>

<p>On order to show cause why an injunction should not issue and a receiver be appointed.</p>

<p>1. A power of sale annexed to a devise of the fee to be exercised at the discretion of the devisee, and without designating any particular object for which it should be exercised, expires at the death of the devisee.</p> <p>2. An infant party defendant to a suit in partition is, in the absence of fraud, as much bound by the decree made therein as an adult.</p> <p>3. A will in the following words : “I give and bequeath to my wife Jeannie B. Eldredge all my real and personal estate, consisting of clothing, jewelry, money and all the instruments, desks, office appurtenances and other prop•erty of like nature now belonging to me and purchased prior to May 1, 1884, and now in the office of the firm of Sites and Harrison,” — Held, to pass title ■to all the testator’s real estate.</p>

<p>1. A parol declaration of trust of personal property is valid.</p> <p>2. If a transaction is equally capable of two constructions, one lawful and the other unlawful, the former will be adopted, especially as against a person who was a party to it equal in guilt with the other, and who is seeking to gain an advantage by having it declared unlawful.</p> <p>2. A and B, owners in common of certain chattels, united in transferring them to’ C to hold in trust for them as tenants in common. There were reasons of convenience sufficient to account for the transfer as to both ; but, in addition to those reasons, B was indebted and intended by the transfer to prevent, temporarily, his creditors from reaching his interest in the property transferred.— Held, that, in the absence of satisfactory evidence that A supposed or intended that his joining in the transaction would tend to aid B in his unlawful project, the trust was valid and would be enforced in favor of A against C.</p>

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

<p>The use of the words “joint tenants” in the appropriate places, in a deed of conveyance, is sufficient to create an estate in joint tenancy under the statute of this State, without the use of the words “ and not an estate of tenancy in common,” or their equivalent.</p>

<p>The evidence which will warrant this court in reforming an instrument in writing, in the correction of an alleged mistake, must establish the existence of the mistake beyond reasonable doubt.</p>

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

<p>1. Peaceable possession in tbe complainant is a jurisdictional fact in a bill to quiet title to lan'ds.</p> <p>2. If defendant, in bis answer to such a bill, deny that complainant is in peaceable possession of the premises in question, the issue thereby raised is .preliminary to the main issue in the cause, and defendant is entitled to have it tried in this court, before it shall grant an issue to be sent to a court of law to try the question of title or no title.</p>

<p>On motion to strike out answer by way of cross-bill.</p>

<p>1. A conveyance of, land by a debtor held to be fraudulent and void as against a creditor, whose debt was subsequently put in judgment, upon the following badges of fraud : First, the consideration was a debt previously dis- • charged by decree in bankruptcy; second, its amount was overstated in the deed and was grossly inadequate, as compared with the value of the property conveyed; third, the encumbrances on the property were overstated in the conveyance; fourth, the conveyance was to the grantor’s mother-in-law, an aged and infirm person, an inmate of his family, and was made with the understanding that she would ultimately convey it to the grantor’s wife, which she did ; fifth, the grantor took from the grantee a power of attorney by which he retained full control of the property and derived all the benefit from it.</p> <p>2. The fraudulent grantor, acting as agent of the fraudulent grantee, permitted a lien claim against the property to go to judgment, execution and sale by the sheriff, and purchased the property in the name of the fraudulent grantee ■ and paid for it with her money. The amount of the claim was less than two iper cent, of the whole value of the property. This was done in order to gain .-an advantage over a party who held a bond and mortgage upon the premises, upon which only a portion of the money mentioned in it had been advanced.— Held, that the assignee of the purchaser at sheriff’s sale might hold the title-acquired from the sheriff as security for the amount actually paid to the-sheriff.</p>

<p>1. The point of time at which testamentary competency is to be tested, is that of the execution of the will. The antecedent and subsequent condition of a testator is chiefly important as bearing upon that epoch.</p> <p>2. A testator will be held to have testamentary capacity when it appears that he can comprehend the property he is about to dispose of, the objects of his bounty, the import and meaning of the business in which he is engaged, the relation of each of these factors to the others, and the distribution that his will makes.</p> <p>3. A will executed by a consumptive five hours before she died, sustained where it appeared that at the very time of its execution the testatrix possessed the capacity above defined.</p>

<p>Where there are two or more executors of a will, all of them should join in an application to have the estate declared insolvent, and the court should not take favorable action upon an application of that character, when made by one of several executors, unless sufficient reason therefor shall be alleged in. the application and established to the court’s satisfaction.</p>

<p>1. The test of testamentary capacity is, that the testator can comprehend the property that he is about to dispose of, the objects of his bounty, the meaning of the business in which he is engaged, the relation of each of these factors to the others, and the distribution that is made by the will.</p> <p>2. The effect of present intoxication and mental disease, induced by habitual indulgence in intoxicants, must be measured by the test indicated, for both may exist in some degree without destroying testamentary capacity.</p>

<p>On appeal from Monmouth county orphans court.</p>

<p>On appeal from, an order of the Monmouth county orphans court.</p>

<p>On appeal from a decree of the Somerset county orphans court.</p>

<p>On appeal from a decree of the orphans court of Essex county.</p>

<p>1. Partnership debts are regarded in equity as both joint and several.</p> <p>2. Where one of two members of a copartnership dies, the creditors of the partnership may prove their debts against the estate of the deceased member.</p> <p>3. In such case the individual assets of the deceased member must be first applied in discharge of his individual debts ; if there is more than sufficient to pay them, and the partnership assets are not sufficient to pay the partnership debts, the surplus assets of the deceased member may be applied to the payment of the partnership debts.</p>

<p>On appeal from an order of the orphans court of the county of Mercer.</p>

<p>On appeal from an order of Camden county orphans court.</p>

George, 17 Stew. Eq. 124. “Lastly. All the rest and residue of my estate, of any and every form, kind! and description whatsoever, I hereby give, devise and bequeath, under the-name of ‘ The Hutchins’ Fund,’ to Henry George, the well-known author of ‘Progress and Poverty,’ his heirs, executors and administrators, in sacred1 trust, for the express purpose of ‘spreading the light’ on social and political' liberty and justice in these United States of America, by means of the…

<p>On appeal from a decree of the vice-ordinary, whose opinion is reported in Davison v. Rake, 17 Stew. Eq. 506.</p>

the complainant for $3,000, and also.a mortgage upon the real estate described in the bill to secure the payment of the money mentioned in the bond. The mortgage was not recorded, and the reason now assigned for that omission is, that the wife of the mortgagor has not joined in the execution ■of it. In December, 1878, this mortgage was surrendered, and Wilson executed another to complainant on the same premises, in which his wife united, and which was at once recorded.

<p>Appeal from a decree of the court of chancery founded on the opinion reported in Lee v. Cole, 17 Stew. Eq. 318.</p>

On the 2d day of July, 1888, at the chancery chambers, in Jersey City, before his Honor A. V. Van Fleet, vice-chancellor, a hearing was had on the exceptions filed by John R. Van Houten and others to the report made in said matter by Washington B. Williams, esquire, one of the masters of this court, and, at the same time, a motion was made, on behalf of the trustees, to have the allowances or compensation of the trustees, for their services, fixed by the court.

He was the owner of four lots of land ; but on November 15th, six days before his death, he made acknowledgments of two deeds, which purported to convey the said lots to the said John in fee. These deeds were not recorded until the day of the death of the grantor. They were recorded before midday, and the father died about six o’clock in the morning. The complainants file their bill, and ask to have these deeds declared void.

. Dickson. An execution was issued, but the amount due was not made by virtue of the writ. Supplementary proceedings were taken by the plaintiff, under the statute, and a receiver was appointed. This suit is brought in the name of the receiver. The charge in the bill is, that the defendant has credits which -he fraudulently conceals, and that he has interests in the real estate of his wife which should be made subject to this judgment.

<p>1. The general rule is, that for mere inadequacy of consideration, unconnected with fraud, a court of equity will not set aside a contract. In deciding whether such inadequacy is or is not connected with fraud, the court is guided by the following considerations: First. Where the known circumstances or relations between the parties are such as to throw suspicion upon the transaction, gross inadequacy of consideration furnishes a strong indication of fraud. Second. Fraud will be presumed from inadequacy of consideration, standing alone, if the inadequacy be so gross as to satisfy the court that it could have been brought about only by deceit or imposition, provided the circumstances and relations of the parties either lend themselves to such a presumption, or are without probative force sufficient to neutralize it. Third. Mere inadequacy of consideration will not furnish a presumption of fraud where the evidence as to the relations of the parties does not coincide with such presumption ; while, if the weight of such evidence is against it, mere inadequacy does not rise to the height of an efficient presumption of fraud.</p> <p>2. Where the parties to a suit at law have tried an issue of fact over which the court had jurisdiction, neither party, after judgment, can obtain, in equity, any relief against the other, predicated in whole or in part upon an assumption of any such fact, contrary to its determination by the court of law; as to ■the parties such a determination is res judieata.</p>

Williams, Esq., advisory master, who filed the following conclusions: This is a case of interpleader, in which the owner of a house, built by contract, duly filed, has paid the final payment into-court, so as to be relieved from the conflicting claims of material-men and workmen, of whom some had served notices on him, under the third section of the Lien law (Rev. p. 668), and some held orders from the contractor.

<p>On appeal from a decree of the vice-ordinary, whose opinion is reported in Mount v. Slack, 18 Stew. Eq. 129.</p>