Volume 47 — New Jersey Equity Reports

<p>1. The ninth section of the “Act concerning county boards established for the protection of the public health and the registration of vital facts and statistics in counties of this state ” (Rev. Sup. p. 344), was not intended to clothe county boards of health with the functions of the attorney-general in cases of public nuisance, but to authorize them to secure for individuals that protection which equity would afford to those persons upon their own suit.</p> <p>2. It is essential that such a bill should exhibit, on its face, a case within the statute.</p> <p>3. The statute plainly contemplates an action similar to that which an individual, injuriously affected, might have maintained.</p>

<p>On bill and demurrer.</p> <p>The bill alleges that Anna K. Schmidt died on the 30th day of August, 1880, leaving a will, of which she appointed Gustavus B. Sanford and Theophilus C. Dunn the executors. By this will, after giving her household furniture to her two-daughters, Amelia and Dora, Mrs. Schmidt directed that the-proceeds of a policy of insurance upon her life should be-•divided so that $100 of it should be paid to one Mary Badger and $900 of it should be divided equally between her own four •children, Amelia, Dora, Edward and Louis, and that the residue of her estate should be so divided that the two daughters should each have thirty-two per cent, of it, and the son Edward should have twenty-five per cent, of it, and the son Louis should have •eleven per cent, of it.</p> <p>The complainant renounced the executorship, and Sanford alone proved the will.</p> <p>In April, 1882, Sanford’s account was allowed by the orphans court of the county of Hudson.</p> <p>In October, 1883, Sanford, being then a resident of New York city, died, intestate, and, afterwards, Phebe E. Campbell and Hathan A. Chedsey were appointed, in New York, as the administrators of his estate. On the 12th of Hovember, 1883, the ■complainant qualified as executor of the will of Mrs. Schmidt. In April, 1884, the New York administrators of Sanford presented his final account to the Hudson county orphans court for allowance, and it was afterwards duly allowed by that court. That account exhibits that the estate of Mrs. Schmidt is indebted 'to the estate of Sanford in the sum of $2,630.58. This sum has ■not yet been paid. The complainant has not yet accounted, but he estimates that he has $1,630.08 in his hands, and he is desirous of paying that sum to those who may be entitled to it. He has ■obtained from the orphans court an order barring further claims by creditors of Mrs. Schmidt. Within the time limited for the ■presentation of such claims, the administrators of Sanford did not ■demand payment of the balance found to be due to his estate ■upon his and their aforesaid accounting. The complainant is “informed and believes that there are false, fraudulent and mistaken items ” in the account filed by Sanford in his lifetime, and also in the account rendered by his administrators, amounting in the aggregate to the sum of $3,325, so that the estate of Sanford is indebted to the estate of Schmidt. The administrators and heirs of Sanford refuse to release their claim upon the estate of tSchmidt, and in turn the legatees under the will of Schmidt forbid the complainant to pay it, or to pay the moneys in his hands-to any one. The bill further alleges, that</p> <p>“Your orator further shows, that he has no positive information, except by rumor, that said accounts of said Gustavus B. Sanford are fraudulent, false and erroneous.”</p> <p>It prays that the complainant may be allowed to pay the moneys in his hands into court, so that the defendants, who are the surviving legatees of Mrs. Schmidt, and the widow and infant child of one of those legatees, and also the administrators, heirs at law and next of kin of Sanford may interplead, and</p> <p>“ That the alleged fraud in the account of said Gustavus B. Sanford, deceased executor of said Anna K. Schmidt, may be- inquired into for the benefit of the infant defendant as well as for all others concerned,”</p> <p>and that the complainant, upon paying the money as aforesaid,, may be discharged from all liability in the premises, and have his costs of this suit.</p> <p>Phebe E. Campbell and Josephine E. Good, two heirs at law and next of kin of Sanford, demur to this bill for want of equity..</p>

<p>Ou final hearing.</p>

<p>1. Equity will relieve where, in ex parte proceedings in foreign attachment-,, advantage, after being waited for, has been deliberately taken of a complainant’s absence to obtain, -without his knowledge, a judgment upon a claim to-which he has a sufficient defence either at law or in equity, and to sell his-land, for an inadequate price, to the plaintiff in the attachment suit.</p> <p>2. In such a case, the bill should fully, definitely and certainly state the-claim upon which the judgment is founded, and how it is impeachable.</p> <p>3. A general charge that such a claim was not legal or valid, sufficiently alleges that it was not just.</p> <p>4. Equity, acting in analogy to the rules of law, will not suffer the recovery ■of a claim which would, at law, be barred by the statute of limitations, unless intervening circumstances, of special character, should otherwise demand.</p> <p>5. Complainants are not misjoined when they have a common interest in ■the attainable object of a suit, and their interests, though perhaps not co-exten■sive, are not inconsistent and conflicting, and are supported by the same equity against the defendant, and his defence against one of them is his defence :against the other.</p>

<p>A entered into an agreement with a corporation to serve it for a term of years, in consideration of which he was to receive a fixed salary. Before the expiration of his term of service the corporation became insolvent and a receiver was appointed for it, pursuant to the provisions of the act concerning corporations, approved April 7th, 1875, and thereby a breach of contract, upon the part of the corporation, was occasioned. — 3dd, (1) that he is entitled to present a claim to the receiver for the amount of the damages -he suffers by the breach. (2) That those damages are to be ascertained by an issue framed by a justice of the supreme court and tried by a jury. (3) That such claim is not entitled to preference under the sixty-third section of the act concerning .corporations.</p>

On bills and answers. The parties- to these suits are identical. The object of the bills is to secure a construction of portions of the wills of David C. and Ann H. Pancoast, husband and wife, late of the county-of Salem. As the questions arising are similar in character, the cases were-argued together, and, with little difficulty, may be decided in the same way. The will of Ann H. Pancoast was admitted to probate in January, 1879.

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

<p>1. When one person erects a building on the land of another, under such •circumstances as to show that it is the mutual intention of the parties that the person making the erection shall have the right to remove the building, the title to the building will not pass to the landowner, but will remain in the builder, and the building will be a chattel.</p> <p>2 The law of easements and servitudes relates exclusively to land, and •cannot be applied to a chattel.</p> <p>3. But the owner of a building disassociated in title from the land whereon it stands, may, when he sells part of it, reserve rights in the part sold, for the •benefit of the part retained, which the law will maintain and protect.</p> <p>4. And such rights may, by the contract of sale, be attached to the building ■in such manner that they will pass with the building to its successive owners.</p> <p>5. When a building is so constructed that one part of it is made tributary to the other, on a sale of that part of it which is tributary to the other, the natural presumption will be, in the absence of an express agreement to the • contrary, that the purchaser takes the part he buys subject to such use by the other part as the mechanical arrangement of the building imposes.</p> <p>6. If an equity is attached to property by its owner, no one purchasing with notice of that equity can stand in a different situation from the owner.</p>

On hearing pursuant to a decree that the defendants inter-plead and settle their rights, in this court, to the fund brought into court by the complainant.

<p>1. The rule laid down in Higgins v. Senior, 8 Mees. & W. 8S4, that a person •not a party to a written contract may be shown to be a party by oral evidence, 'has never been adopted by the courts of New Jersey.</p> <p>2. A written contract, which is free from ambiguity and perfect in itself, and ■not the. product of fraud, or the result of mistake, and which has not been •changed by a subsequent contract, cannot be changed, varied or contradicted •by parol evidence.</p> <p>3. A writing, to be entitled to be considered a compliance with that provision of the statute of frauds which requires that a contract for the sale of land shall be in writing, must contain all the essential terms of the bargain;, expressed with such certainty that they may be ascertained from- the writing-itself, without the aid of oral evidence.</p> <p>4. In such a case parol evidence is inadmissible to show who the vendor or-the vendee is, the subject of the contract, the price to be paid! or tne terms of.' credit. _</p>

<p>On motion to strike out.</p>

<p>1. No responsibility attaches for damage done by the diversion of surface-water, where the diversion is merely incidental to and occasioned by the making or alteration of street grades.</p> <p>2. But where a municipality puts into execution a scheme of improvement .by which surface-water, collected from a large area, is prevented from following the grades of the streets, and is carried, by artificial means, from where it ■would otherwise be discharged and made to flow on to the land of one person, in ease of the lands of others, there an actionable wrong is committed.</p> <p>3. "Where the quantity of surface-water sent to the point of discharge is increased by an enlargement of the area of drainage, but such enlargement results entirely from making the grade of the streets conform to the grade •established by the proper authority, any injury resulting from the increase in ¡the quantity of water discharged at that point is regarded, in law, as damnum absque in/juria. ■</p> <p>4. "Where a municipality, by means of a basin and culvert, discharges all the surface-water carried tó a particular point in such manner that the water, by its own force, makes a channel for itself through the land of a citizen, a taking of private property for public use occurs, and if no compensation to the ■owner be provided,-the use of his property by the municipality will be enjoined.</p>

<p>1. 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 is 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>■ 2. The person claiming that a resulting trust should he established in his-favor, to succeed, must prove, by convincing and satisfactory evidence, that his • money paid for the land.</p> <p>3. Where a husband pays the purchase-money of land and has the land conveyed to his wife, the presumption which the law makes is, that the husband intended to make a gift to his wife, and this presumption must prevail, unless it is rebutted by convincing evidence.</p>

<p>1. A tenant of farm land, whether for a term certain or uncertain, has a ■right, after the expiration of his term, to enter upon the demised premises • and cut and carry away all the grain which he has sown but which was not ripe when his term expired.</p> <p>2. Where a gift is made of the interest or income, either of the whole of the residue, or a particular part of it, to one person for life, and the principal is given over to others on the death of the life tenant, the life tenant is entitled to interest from the date of the death of the testator.</p> <p>3. Where goods and chattels are given generally, or as a residue of personal ■ estate, to two persons, to be enjoyed in succession, one to have the use during life and the other to take the remainder on the death of the life tenant, -the general rule is, that the remainderman has a right to have the property, with- ■ out unreasonable delay, converted into money, and the money invested, so that the principal may be made secure to him on the death of the life tenant, and that the life tenant may have the interest of the principal during his life.</p> <p>4. This general rule does not, however, apply to a case where the testator has expressed an intention that the property, as it existed at his death, should be enjoyed in specie, although the property be not, in a technical sense, ■specifically bequeathed. In such a case the legatee for life has a right to the mse and enjoyment of the property in specie during his life.</p>

<p>1. If a party to a partition suit who is entitled to a share of the lands subject to partition becomes a purchaser of a part of the lands at a sale by a master, under order for that purpose made in the cause, and makes default in completing his purchase, and upon a re-sale a deficiency occurs, the court may pass upon and determine in a summary manner his liability to make it good and charge such deficiency against his share in the fund.</p> <p>2. The conditions of sale contained a clause by which the percentage paid by the purchaser at the time of the sale was forfeited in case he failed to complete. The purchaser failed to complete, and on a second sale a deficiency arose. — Held, under the language of the condition, that the defaulting purchaser was entitled to have the percentage by him paid applied in reduction of this deficiency.</p>

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

Bill for injunction. On final hearing on pleadings and proofs. The bill prays for a perpetual injunction against the defendant to restrain him from further prosecuting an action of ejectment brought by him in a court of law against the complainant, in which a finding against complainant had been made by the judge sitting without a jury. After the filing of the bill judgment final was entered on the'judge’s finding, and the cause proceeded on that basis.

<p>1. In order to pass the title to land by conveyance, there must be such an-actual or constructive tradition of the deed from grantor to grantee as puts it beyond the control of the former, and it must be accompanied by an intention, to pass the title at once.</p> <p>2. A son procured from his mother, who was advanced in years and had' implicit confidence in him, a deed of conveyance of land which was intended' to be in the nature of a testamentary disposition and to take effect at her death, but which did not contain any power of revocation or reservation of a life-estate, and which was executed without any independent advice as to its-effect. — Held, that the deed, even if considered as so far delivered as to pass the title, must be set aside.</p> <p>3. The son put the deed on record without his mother’s consent, and then-procured her to execute a deed of ratification of the recording upon receiving a conveyance from him for life, she being ignorant of her rights, and still without independent advice.— Held, that the deed of ratification must be set. aside.</p>

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

<p>1. Where a license has been so far executed that its revocation would work a fraud, actual or constructive, upon the licensee, equity will restrain such revocation, although its continuation results in an easement upon the lands of the licensor in favor of the lands of the licensee.</p> <p>2. No distinction in equity arises out of the place where the works are erected under license, whether ujion the lands of the licensor or licensee.</p> <p>3. Tlie owner of a brewery constructed, at considerable expense, a drain from tbe cellar of the brewery along the line of a neighbor’s lot, by his consent, and connected it with a public sewer in a street upon which the brewery lot did not face, and maintained it for thirty years. No particular time was fixed for the continuance of the drain.. Its continuance was of great consequence to the brewery, and worked little or no injury to the neighbor’s lot. — Held, that the presumption, from the circumstances, was, that it was to continue as long as the necessity of the brewery required it, and that the owner of the adjoining lot •should be restrained from disturbing it so long as the brewery lot was used for a brewery, or until a public sewer should be constructed in the adjoining street.</p>

<p>1. In determining whether an absolute conveyance of land, together with ai contract to reconvey upon payment of a fixed sum on a future day, constitutes-a mortgage or not, the court will look at all the circumstances, the most important of which are: (1) Is there an obligation on the part of the grantor to pay the purchase-money which is enforceable at law ? (2) Is the land conveyed worth considerably more than the purchase price ? (3) Does the grantor retain possession of the land granted upon terms of paying a rent equal to the interest on the purchase price ?</p> <p>2. A person having an equity of redemption in land, arising out of an absolute conveyance and a separate contract to reconvey, may estop himself from' setting up his equity by standing by and seeing the grantee make valuable-improvements on the land, on the supposition that he is the absolute owner, and by enforcing against him pecuniary demands based upon such ownership..</p>

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

<p>On an order to show cause why an injunction should not issue to restrain the execution of a warrant of removal, under the act •concerning landlords and tenants.</p>

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

<p>1. The recitals of a bill of strict interpleader should give so full a statement-of complainant’s claim as to demonstrate that he has no interest in the thing, in controversy.</p> <p>2. Complainant cannot adjust his own claims against the matter in controversy, and ask defendants to interplead as to the balance. Strict interpleader is ■ •where the depositary holds as depositary merely, and the claims are made ■against him in that character only.</p> <p>S. Defendants may raise an issue as to complainant’s averment that he is a -disinterested stakeholder, and such issue is to be tried according to the practice of the court.</p> <p>4. While the amount is not an issue to be settled by decree in a strict inter-pleader, it may be inquired into to ascertain whether complainant can maintain the suit.</p>

<p>On order to-show cause why injunction should not issue.</p>

<p>1. When a husband, not entirely blameless for the act, makes no effort to prevent his desertion by his wife, and acquiesces in and appears satisfied with its continuance, he is not entitled to a divorce on the ground of desertion.</p> <p>2. A wife, claiming that her abandonment of her home was caused by the conduct of her husband, must, in the face .of his denial, if she seeks a divorce on the ground of desertion, sustain her claim by the corroborative evidence of circumstances, or of other witnesses..</p>

<p>1. Mere declarations of a willingness to resume marital relations, without any effort to put an end to a separation, are of little weight in an action for divorce on the ground of desertion.</p> <p>2. Complainant not having manifested, other than by declarations made in court, when under arrest for non-support, any desire that the defendant should return to him, but acquiescing in her absence, is not entitled to a divorce under the statute.</p>

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

<p>1. Opinions of witnesses concerning the testamentary capacity of a testator have weight as evidence only when they are based upon facts and occurrences which those witnesses detail before the court. They are received because the observation of the witnesses may have conveyed to them little, indefinable and almost imperceptible actions and expressions which language -cannot adequately describe. Their value, at best slight, is enhanced or diminished according to the opportunities for observation and the honesty and intelligence of the witness.</p> <p>2. The fact that the will is in itself natural and reasonable, is a fact' corroborative of the correctness of the opinions of the subscribing witnesses, that the testator possessed testamentary capacity at the time of the execution, of the will.</p> <p>3. The memory of a testator may be imperfect and impaired by age or disease, so that he may not be able to recollect the names, the persons or the-families of those with whom he has been intimately acquainted, and he may, at times, do childish things, speak disjointedly, abruptly pass from one subject to another, or ask idle questions and repeat those which have before been asked' and answered, and yet possess capacity to make a will.</p> <p>4. The capacity required in making a will is limited to the testator’s comprehension of the property he is about to dispose of, the natural 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. The amount of mental capacity must be equal to the subject with which, it has to deal.</p> <p>5. The influence which the law denominates undue must be such as destroys-the testator’s free agency by amounting to moral or physical coercion.</p> <p>6. The influence of affection and kind offices, unconnected with fraud or contrivance, though it induces gratitude and testamentary recompense, is noti undue.</p>

<p>1. Upon appeal from an orphans court, in a will contest, the prerogative-court may, in its discretion, take additional evidence, to be used at the hearing.</p> <p>2. In such a contest it was disclosed that at the period of time when the will was executed, the testator’s mind was, to some extent, impaired by old age and trouble; that second childhood was asserting itself; that, at times, he would momentarily lose control of his mental power, but usually he was in full possession of his faculties, and that at the very time of the execution of his will, he was in full possession of his faculties. — 11eld, that the proofs were insufficient to show that he lacked capacity to make a will.</p> <p>3. That influence which destroys the free agency of a testator in making, his will, is undue.</p> <p>4. Influence acquired by kindness and affection honestly and fairly bestowed ■■upon an aged person is not undue, though it may induce testamentary recompense.</p>

1. There was no declaration of trust in the deed by which the-property was conveyed to the complainant’s husband, nor was-there any other… Held: the title to the property in question in trust from the time it was-deeded to him in 1864 until 1882, a period of eighteen years,, when he made a conveyance of the title to his mother-in-law, who immediately conveyed it to the complainant. • It is impossible for me to conclude that all this period of time could have-elapsed without…

<p>On appeal from a decree advised by Vice-Chancellor Pitney, reported in Hackensack Savings Bank v. Morse, 1 Dick. Oh. JRep. 161.</p> <p>Morse was the purchaser of lands whereof Peter R. Terhune died seized, at a sale made by Richard P. Terhune, the executor, under a power of sale given by the will of the deceased.</p> <p>The Hackensack Savings Bank was the purchaser at a sheriff’s sale of the estate of Richard P. Terhune, an heir at law of the testator, in lands of the deceased.</p> <p>The decree appealed from set aside Morse’s title in favor of the complainant’s title. From this decree Morse appealed.</p>

The •complainants insist that Steward has no legal interest in the land attached, but only an equitable, and that the legal title, is in the other' complainants, and that if the attachment is allowed to be consummated, a cloud on the title will thereby be created which will greatly impair the value of the lands.

<p>1. On foreclosure of a mortgage given by a riparian owner covering the shore and including the land lying under water in front of the upland, which was afterwards leased from the state and improved by filling, below high-watermark, before the sale is ordered, the rights of the mortgagee in the land that was submerged at the time the mortgage was given and has since been reclaimed, should be defined.</p> <p>2. The defendant company, which purchased a lease of the land under water from the state and reclaimed it by filling, has the higher title and superior right to be first paid the price of such purchase and the value of the impx-ovement.</p>

<p>Ou appeal from a decree of the prerogative court. The opinion of the ordinary is reported in Lwppie v. Winans, 10 Stew. Fq. £46.</p>

<p>1. If an order of the orphans court, directing an administrator to sell lands •for the payment of debts, be defective for want of a statement of the sum necessary to be raised, and on that ground an appeal be taken to the prerogative court, the prerogative court should correct the order in that particular, whenever the proceedings removed by the appeal show the facts which will ■ enable the court to do so.</p> <p>2. The statute of 1885 (Rev. Sup. p. 781 § 24), authorizing amendments by the orphans court and ordinary “at all times and in all cases,” empowers those tribunals to make amendments in proceedings brought before them by appeal, as well as in proceedings originating before them.</p> <p>3. When a rule to show cause is, on its return day, continued by the court to a later date in order that it may be served on other parties, the later date becomes its return day.</p> <p>4. Under the amendment of the Orphans Court act (P. L. of 1887 p. 198), requiring a rule to show cause to be published “ for six weeks successively once in each week before the return day,” it was not necessary that the publi- ■ cation should be made in the six weeks next preceding the return day of the rule.</p> <p>5. If on the return of a rule to show cause in the orphans court, proctors appear on behalf of all the parties interested, and admit due and legal service of the rule, that is sufficient evidence of the proper service of the rule.</p> <p>6. An order of the orphans court, signed by judges some of whom were not present when it was made, is nevertheless the order of the court and entitled to credit as such.</p> <p>7. On an application to the orphans court for an order directing an administrator to sell lands for the payment of debts, although the court may not pass upon a question of title as between the decedent and a person claiming against him, yet the court may ascertain of what real estate the decedent died seized, so far as to enable it to indicate in the order what the administrator is • ordered to sell.</p>

Oil appeal from a decree advised by ’Vice-Chancellor Bird, which was as follows : This cause coming on to be heard before the court, in the presence of Daniel Vliet, solicitor, and J. G. Shipman & Son, of counsel with the complainant, and of William H. Morrow, of counsel with defendant, Margaret Johnston, and the bill of complaint, answer aud replication having been read, and the court having heard the evidence of the witnesses on the part of the complainant and of said…

<p>On appeal from a decree advised by Yice-Chancellor Yan Eleet, whose opinion is reported in 1 Dick. Ch. Rep. Jf.ll.</p>

<p>On appeal from a decree advised by 'Vice-Chancellor Van-Fleet, whose opinion is reported in Kelly v. Dunning, 16 Stew. Eq. 62.</p>

<p>On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in Britton v. Royal Arcanum, 1 Dick. Ch. Rep. 102.</p>

<p>On appeal from an order of the chancellor in Hamlin v. Bennett, as follows:</p> <p>The exceptions to the master’s report heretofore filed in this cause, on exceptions to the answer filed in this cause by John CL Bennett and Mary C., his wife, coming on to be heard before the chancellor, in the presence of William M. Davis, of counsel with the complainant, and of John R. Emery, solicitor and of counsel with the defendants, and the chancellor having heard the arguments of the counsel and having duly considered the same:</p> <p>It is, on this 15th day of April, 1889, ordered, that the first two exceptions to the master’s report be overruled ; that the third" exception to the answer be amended so as to read, “that the-' complainant alleges that the defendants have failed- to answer whether John C. Bennett paid for the repairs &c. made to said house with his own means.” It is further ordered, that defendants answer specifically and fully the matters contained in the-original first and second exceptions to the answer, and also the-matter contained in the amended third exception to the answer that the defendants file said answer within thirty days from the service of a copy hereof.</p> <p>No costs allowed either party on this motion, and in default of the defendants answering within the time fixed by this decree,, that a decree pro confesso be entered against the said defendants..</p>

<p>On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in 1 Dick. Oh. Rep. 400.</p>

Brown et al., advised by Vice-Chancellor Bird, as follows: This matter coming on to be heard on the petition of Daniel H. Close, in the presence of Frank Bell, of counsel with the said petitioner, and of Charles T. Cowenhoven, of counsel with the complainant in said cause, and the court having heard the depositions taken on both sides, and the arguments of counsel, and it appearing to the chancellor that the petitioner is not entitled to relief except so far forth as…

Van Ness, striking out of the answer of the defendant, Van Ness, clauses III. and IV., as follows: III.

<p>On appeal from a decree advised by W. B. Williams, one of' the advisory masters, as follows:</p> <p>The final decree heretofore made in this cause, dated on the 11th day of October, A. D. 1888, having been opened on the application of the complainants to admit newly-discovered evidence, by order dated on the 1st day of August, A. D. 1889, and this-cause coming on for hearing, in the presence of Cortlandt Parker, of counsel with complainants, and Charles L. Corbin, of counsel with defendant, and witnesses having been called and’ exhibits offered and couusel heard, and the court having considered the case, and being of the opinion and finding that no cause-for further relief to complainants has been shown by the further evidence taken, and that the complainants are entitled to an injunction to stay the defendant’s suit at law, being a part of the-relief prayed for, on terms of compensation to the defendant as hereinafter set forth, and that the other relief prayed for in the-bill should be denied:</p> <p>It is, on this 23d day of January, A. D. 1890, ordered, adjudged and decreed, and the chancellor doth order, adjudge- and decree, that the defendant is seized in fee simple of the land described in the summons and declaration in ejectment referred to in the ¡bill; that the Paterson and Newark Eailroad Company took pos•session of the same on or about the 1st day of August, A. d. 1866, •and constructed a railroad thereupon, which has been, and still ■is, operated over said land ; that at the time of the commencement ■of this suit no ownership or easement had been acquired by complainants or said Paterson and Newark Eailroad Company; ■that the franchises and property of said company came into the -ownership of the complainants, the Paterson, Newark and New York Eailroad Company, and were leased by.them to the complainants, the New York, Lake Erie and Western Eailroad -Company, by whom said railroad was operated at the time of the ■commencement of this suit; that no compensation was made ¡to the defendant for said land so taken; that* the value of the •land so taken was, on the 1st day of August, a. d. 1866, the .sum of $469.87, and the damage to the adjoining land of the defendant not taken, resulting from the taking for the purpose of khe construction and operation of said railroad, was $500, and .also the cost of fencing along the line of said railroad, which was ■■$364; that the defendant is entitled to be paid said sums which •are hereby adjudged to be due to him by the complainants, with .interest thereon at seven per cent, to the 4th day of July, A. D. 1878, and at six per cent, thereafter, making in all, on the 11th day ■of October, a. D. 1888, the date of the former final decree herein, the sum of $3,271.08, and that the defendant is also entitled to be paid interest on said last-named sum from October 11th, A. D. 1888, to date of payment, and his taxed costs of said suit in •ejectment and of this suit, and that the said payments shall be made at the office of the defendant’s solicitors, in Jersey City, \within twenty days after service upon the complainants’ solicitor •of a certified copy of this decree and of copies of the taxed bills of costs; and in case the defendant shall fail or refuse to re•ceive said payment, then the same shall, within the same time, be paid to the clerk of the court of chancery, and upon the making •of such payments, with interest on the said sum of $3,271.08 .from October 11th, A. D. 1888, to the date hereof, the defendant .shall convey the said lands to the complainants, the Paterson, Newark and New York Eailroad Company, for the purposes of its charter; arid in default of such conveyance, this decree shall, upon such payment into court, operate as such conveyance, and the defendant shall be thereupon perpetually enjoined from prosecuting said suit of ejectment, and that the other relief prayed by way of specific performance of an alleged contract to convey said lands- without compensation be denied, and that the complainants are not entitled to any further relief in this cause.</p> <p>And it is further ordered, adjudged and decreed, that, in default of such payment, the injunction heretofore granted may be dissolved and the complainants! bill may be dismissed, with costs, and leave is hereby reserved to the defendant to apply for such dismissal in case of such default, or to apply for execution against the complainants for the payment of said sums of money and for such other and further relief as may be equitable.</p>

v. .Atlantic City Ocean Pier Co., who delivered the following opinion : The petitioner prays to be made a party defendant in an ordinary foreclosure suit, and shows himself to be a creditor of the mortgagor and defendant, and that his debt accrued for services rendered by him as an employe- of the defendant, which he says is insolvent and in the hands of a receiver.

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

<p>1. A voluntary transfer of stock, by its owner, perfected by delivery and acceptance, becomes an executed contract and is irrevocable by the owner, for it was founded upon the mutual consent of the parties in reference to a right or interest passing between them.</p> <p>2. A married woman may not bind herself by promise to pay the debts of another, but she is invested with power to dispose of her property and may transfer it to secure the payment of the debt of another, and when she has. actually made such transfer, she cannot afterwards, at will, avoid it.</p>

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

<p>1. A promise to pay an annuity, not supported by valuable consideration, is mot enforceable at law.</p> <p>2. To give a consideration sufficient value to support a promise, it must be ■either such as deprives the person to whom the promise was made of a right which he before possessed, or else conferred upon the other party a benefit which he could, not otherwise have had.</p> <p>3. The promise to apply an annuity which the promisor has gratuitously agreed to pay the promisee, to the satisfaction of a debt of the promisee, to become due to the promisor, is not a promise for valuable consideration.</p> <p>4. A debt on bond and mortgage cannot be extinguished by a mere voluntary statement by the creditor that he will forgive it. Where the purpose is to voluntarily extinguish such a debt, it must be executed by an instrument as .solemn as the instrument by which the debt is created.</p> <p>5. There is no such thing as an equitable release of such a debt by a declaration or agreement of the creditor that he will relinquish or forgive it.</p> <p>6. Acts which are merely indicative of intention to perform a voluntary promise, which do not prejudice the promisee, are not irrevocable steps in the performance of such a promise.</p>

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

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

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

<p>1. The parties to a usurious contract can do nothing which will have the effect to validate it, so as to deprive the debtor of his right to defend on the ground of usury, except by expunging its usurious element.</p> <p>2. The purchaser of the equity of redemption in premises covered by a usurious mortgage, who takes title subject to such mortgage, cannot set up the defence of usury, but he is precluded from making such defence not on the ground that the taint of usury has, by the conveyance, been purged from the mortgage, but because he kept back enough of the price he agreed to pay for the mortgaged lands to pay the mortgage, and thus placed himself in a position where he cannot allege usury without attempting to defraud both his grantor and the mortgagee.</p> <p>3. A statement in a second mortgage that the mortgaged premises were, when it was given, subject to a prior mortgage, will not prevent the second mortgagee, in a suit founded on the first, from showing either that the first is usurious or has been paid.</p>

<p>1. The benefits received in the way of religious instruction and consolation-by one who attends regularly upon the ministrations of a religious society constitute a meritorious consideration for a conveyance of land by such attendant to the society which will induce a court of equity to supply a defect in the-conveyance.</p> <p>2. A deed of conveyance conveyed land to “A, B, 0, D ” and others, trustees-of the Methodist church &c., and “ their successors in office forever,” without using the word “ heirs.” — Held., that the intention to convey a fee simple was-manifest, although the absence of the word “ heirs ” prevented a court of law from giving effect to it.</p> <p>3. The Methodist church named was a regularly incorporated religious-society. — Held, that the conveyance enured to the benefit of the corporation.</p> <p>4. The last survivor of the trustees named in the deed having died, and the heir at law of the grantor having recovered in ejectment the land conveyed— Held, that he should be perpetually enjoined from enforcing his judgment, although the conveyance was without other consideration than the attendance hpon the ministrations of the church.</p>

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

<p>1. Where the owner of land, makes a map of it, showing a street upon it, and sells lots abutting upon and calling for such street, but the same is never used or accepted by the public, the purchasers, nevertheless, acquire the same rights in the street so called for as against the original owner and each other as they would if it were in fact a public street.</p> <p>2. The rights so acquired are private rights annexed as appurtenant to the lote so "conveyed, and are distinct from, and in addition to, the rights of the owners as citizens to use the street after it shall be, if ever it is, used and accepted by the public. ■ "</p> <p>3. The rights so acquired and annexed to the abutting lots are two fold— first, the right of access to and from and passage over the land so designated as a street; and, second, the right to light, air and prospect from and over it. These rights are distinct from each other, and the second is capable of being exercised and enjoyed by itself and without any exercise or enjoyment of the first.</p> <p>4. Mere non-user for any length of time of an easement created by express grant will not destroy or extinguish it. In order to extinguish it by non-user, there must be some conduct on the part of the owner of the servient tenement adverse to, and in defiance of, the easement, and the non-user must be the result of it, and must continue for twenty years.</p> <p>5. The owner of a block of land made a map of it, showing an alley or street twenty feet wide running through it, and, by deeds executed and delivered on the same day, conveyed to two several grantees the lots situate on each side of the alley and facing on one of the main streets, and in the deeds called for the alley. The grantee of one of the lots so conveyed enclosed his lot with an ordinary fence, and included in his enclosure the strip designated as an alley, and maintained the enclosure for more than twenty years, but did not place upon the part designated as an alley any structure except the fence. — Held, (1) that the owner of the lot adjoining" the locus of the alley on the opposite side had a right of light, air and prospect from and over the locus of the alley which was not extinguished by its enclosure for more than twenty yfears, and (2) that equity would, at the suit of the last-named owner, restrain the erection upon the locus of the alley of any structure which will obstruct the exercise of such right to any greater extent than did the fence so maintained for more than twenty years.</p>

<p>On bill for receiver. On petition of the executors of James Jameson.</p>

<p>Bill for partition. Heard on bill, answer, cross-bill and proofs..</p>

<p>. Heard on bill, answer and proofs in open court.</p>

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

<p>1. An assignment by an Indian nation of a part interest in a claim held by it against the United States, made in accordance with the provisions of section 2103 of the Rev. Stat. U. S., and a snb-assignment made in accordance with the provisions of section 2106, are not prohibited or rendered invalid by section 3477 of those statutes.</p> <p>2. Where a sub-assignment of a definite sum, part of such a claim, was made to A, in trust for himself and B, O, D and E, five persons, in equal shares, but the names of the persons so interested were not mentioned in the deed of assignment and their rights rested wholly in parol, and B, in requesting A to act as trustee and to advance a certain sum in payment for his interest in the .assignment, represented to him that the parties interested were A, B, C and D, four persons in all, purposely omitting E, whereby A acquired an equity in the proceeds of the assignment superior to E — Held, that B’s share in the proceeds must make good to E what E lost by the superior equity of A so created ■by B’s misrepresentation.</p>

<p>Complainant owning certain vacant lots situate at a distance-from her residence, of the value and size of which she was ignorant, bat supposed them to be one hundred by twentylfive feet each, solicited the defendant C. A. D. to assist her in finding a purchaser for them, which he undertook to do. He ascertained their size to be one hundred by fifty feet, and obtained an offer for them of $100 a lot, and at once, and without informing complainant of their true size or value, told her he had sold them on her account at $45 per lot and would pay her $40 per lot, retaining the difference for his trouble and expenses, and upon that statement obtained from her a conveyance to himself at that price. — .Held, the conveyance must be set aside and a reconveyance decreed.</p>

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

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

<p>On demurrer to part of the bill.</p>

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

<p>Appeal from an order of'distribution made by the Warren county orphans court.</p>

<p>Motion for a reargument. On appeal from the court of chancery, reported in H Dick. Ch. Rep. S15.</p>

This was a suit for divorce, on the ground of adultery, and the case was referred to a master in chancery to take the testimony. The defendant in the court of chancery, who is the appellant in this appeal, did not appear personally as a party before the master, and an order had been made by the chancellor that she-should appear as a witness in behalf of the respondent.

<p>On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in Supreme Council of Chosen Friends v. Bennett, 2 Dick. Ch. Rep. 39.</p>

<p>On appeal from an order sustaining a demurrer advised by Vice-Chancellor Van Fleet, reported in Hayes v. Hayes, 18 Stew. Eq. 4-61.</p>

<p>1. If a decree in chancery be partly in favor of a party and partly adverse to him, and he appeal from that portion which is adverse, this court, by a judgment of affirmance on such appeal, does not affirm that portion of the decree which was in favor of the appellant.</p> <p>2. An appeal from a final decree in chancery brings up for review the whole case, with all interlocutory orders involving the merits of the controversy.</p> <p>3. When an innocent member of a firm, established for the conduct of a lawful and moral business, calls upon his partner for a share of profits made in partnership transactions, the partner will not be absolved from the duty of dividing, on showing that he realized the profits by cheating the customers of the firm.</p>

Stevens, Esq., advisory master, in Lovejoy v. Hopper, who filed the following «conclusions: The second ground is, that the mortgages were not proved pursuant to the law of New Jersey, and that not… Held: chiefly on the authority of Haston v. Castner, J¡, Stew.

<p>1. Where a mortgage is made by an insolvent corporation, pending a suit by a creditor to wind it up as an insolvent corporation, and also- in violation of an injunction issued by the court of chancery, the mortgage is a nullity, ‘ and a subsequent dismissal of the creditor’s suit will not render the- mortgage a valid instrument.</p> <p>2. An insolvent corporation has a right to prefer one creditor over another, •but, in order to impart legal efficacy to its acts, in attempting to create preferences, it must exercise its right in that regard in a lawful manner;</p>

<p>On appeal from a decree advised by the vice-ordinary, whose opinion is reported in 18 Stew. Eq. 726.</p>

<p>1. The title of “An act entitled ‘A supplement to an act entitled “An act to authoi'ize the formation of railroad corporations and regulate the same,”.’ approved April 2d, 1873” (P. L. of 1887 p. 226), which supplement was approved March 31st, 1882, does not express the subject of the legislation; but is vague and misleading, and therefore the act is void.</p> <p>2. The body of the act imposes upon railroad companies the duty of repairing bridges over public roads, and empowers the court of chancery to decree a specific performance of this duty.</p> <p>3. The supplement of March 31st, 1882, mentioned in the title, deals with a subject entirely foreign to this; it provides for a reduction of the capital stock of railroad companies under certain conditions. ‘</p> <p>4. A court of equity will not issue a mandatory injunction to compel the performance of a duty in any instance in which the duty imposed is of that official or corporate quality where a court of common law is competent to adequately compel its execution.</p>

<p>1. Where a testator directs his executor to apply so much of the income of .a fund to the support of an infant as, in his judgment, may be necessary for that purpose, the question as to the amount which shall be so applied is, in the first instance, committed to the discretion of the executor, and his judgment on that question is not subject to judicial revision so long as he exercises a fair and honest discretion.</p> <p>2. But if the executor abuses the power committed to him, and makes a grossly unreasonable allowance, then the court may'interfere and make such an allowance as he, in the exercise of a proper discretion, ought to have made.</p>

<p>On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in 17 Stew. Eq. 398.</p>

<p>On appeal from a decree advised by Vice-Chancellor Bird, whose opinion is reported in McCormick v. Ocean (My Association, 18 Stew. Fq. 561.</p>

<p>On appeal from a decree advised by Vice-Chancellor Bird, whose opinion is reported in Carter v. Burr, 1 Dick. Ch. Hep. 13Jh</p>

<p>On appeal from an order of the chancellor, whose opinion is reported in 1 Dick. Oh. Rep. 37%.</p>

<p>On appeal from an order advised by Vice-Chancellor Van Fleet, whose opinion is reported in 1 Dick. Ch. Rep. ^3^..</p>