Volume 51 — New Jersey Equity Reports

<p>Where money or personal property is bequeathed to the heirs of A., or the heirs of the testator, if there be nothing in the will to show that the testator used the word “heirs” in a different sense, the next of kin are entitled to take under such description, they being the persons appointed by law to succeed to the personal property.</p>

On original and supplemental bills and answers thereto. The bills are filed by a judgment creditor for the purpose of having the two deeds, hereafter referred to, declared void qnd set aside, the judgment debtors having no other property out of which the judgments can be satisfied than that which said deeds purport to convey.

<p>On hearing on petitions, orders to show cause and facts established by agreement.</p>

Oa demurrer to bill for specific performance. The bill alleges that Rufus Story died in the year 1887, testate, seized of sundry large tracts of land in this state, and leaving him surviving his widow and four daughters; that the complainants are the executor and the executrices of the will of Mr. Story; that by the fifth and sixth paragraphs of his will, Mr. Story made disposition of the residue of his estate as follows: “Fifth.

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

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

<p>1. Stockholders of a corporation have a right to have the property of the corporation applied and used exclusively for the purposes specified in its charter, and any attempt by its managers to appropriate it to any other purpose is a violation of the rights of the stockholders.</p> <p>2. A corporation created by statute can exercise no power and has no rights except such as are granted by express words or fair implication.</p> <p>3. In the construction of such grants the rule, however, is to hold that what is fairly implied is as ¡much granted as what is clearly expressed.</p> <p>4. A corporation holds its property as the trustee of its stockholders, and they, like any other cestui que trust, have a right to have the trust property honestly managed and preserved from waste and misappropriation.</p> <p>5. Equity discourages laches and neglect, and requires those who seek its aid to act in good faith and with reasonable diligence.</p> <p>6. A stockholder who applies to a court of equity for its summary interference to protect his stock against the consequences of an act not prohibited by law, but in excess of the power of the corporation, to be entitled to what he asks, must apply promptly; he cannot wait to speculate upon the chances, but he must come before the act of which he complains has become the foundation of rights or equities which must be overthrown to extend relief to him.</p> <p>7. Summary relief will not be extended to a suitor whose conduct, before he asks for relief, has been such as to prevent equity being done.</p>

<p>1. The judgment of a court of competent jurisdiction, on a question of fact or law, has the effect, as between the parties and their privies, so long as it remains unreversed, to put the matter adjudged at rest forever and for all purposes.</p> <p>2. There is a difference between the effect of a judgment when it is set up in a second action, founded on the same claim or demand on which the first action was founded, and when it is set up in a second action, founded on a different claim or demand from that on which the first action was founded. When the second action is founded on the same claim or demand the judgment is conclusive, not only as to all matters which were actually litigated and decided, but as to all which might have been; but when the second action is founded on a different claim or demand, the judgment is conclusive only as to such matters as were actually litigated and determined.</p> <p>3. The doctrine that a judgment concludes the parties forever, in respect to the subject-matter of the suit, is not a mere rule of procedure, to be enforced only in cases where a defeated suitor attempts to litigate anew a question once decided against him, but a rule of justice, which must be enforced whenever its enforcement is necessary for the protection and security of rights.</p> <p>4. A court of equity may compel the surrender of an invalid negotiable instrument.</p> <p>5. A suitor asking for the surrender of such an instrument may prove its invalidity by any evidence competent for that purpose.</p>

<p>1. Mrs. Pyatt and Mrs. Wait are sisters; they owned a house and lot as tenants in common, and for years had been anxious to make sale thereof; Mrs. Wait authorized a real estate broker to make sale for §8,500, fixing all the terms by memoranda in writing, to which she signed “Wait & Pyatt;” the broker, by writing, purporting to be for Mrs. Wait and Mrs. Pyatt upon the face of it, agreed to sell the lot to one Lyons, simply signing his own name thereto, Lyons signing his. — Held, that if Mrs. Wait had no authority whatever to bind Mrs. Pyatt in authorizing the broker to sell, she ratified both the act of her sister and the agent by letters directing the agent to prepare a deed, and by executing and acknowledging such deed and delivering it again to the broker for the purpose of completing contract of sale; also, held, that although the written agreement entered into by the broker may have been so imperfectly executed as not to bind either of the sisters, they both ratified it and became bound by its provisions by their letters and by the execution and tender of the deed for the premises.</p> <p>2. A letter written by Mr. Pyatt, at the request of his wife and Mrs. Wait, to the broker, enclosing a check for the sum named in the contract as liquidated damages, directing him to hand it together with the part consideration money which Lyons had paid to him, and also to return the contract to Lyons, constitutes a distinct ratification of the contract and relates back to the time of its execution.</p> <p>3. Such broker having been continued in their service with respect to the same transaction, they were chargeable with all the information which he possessed respecting the matter.</p> <p>4. They were chargeable with the knowledge of an attorney who drew the agreement and had the possession of it at the time when they employed him, though such employment was not until after the time named for the delivery of the deed.</p> <p>5. Where vendor and vendee are endeavoring to remove some supposed encumbrance or cloud upon the title, neither has a right to consider his obligations to the other determined without reasonable notice.</p> <p>6. Where vendors agree to convey a house and lot at the corner of Nassau and Witherspoon streets, and it is discovered afterwards that three feet and eleven inches of the house is upon Witherspoon street, and the deed which is tendered by the vendors purports to run along Nassau street twenty-six feet and six inches to Witherspoon street, such tender is in compliance with their agreement, and conveys all the land owned by the vendors in the corner formed by the junction of said streets.</p>

<p>Under the act of the legislature imposing taxes upon certain corporations, and providing for the collection thereof, the only power given to or duty imposed upon the court of chancery is to issue an injunction when the attorney-general presents a proper case. In the Matter of the Taxation of Faure Electric Eight and Force Co., 16 Stew. Eq. 411, and In the Matter of the Taxation of the New York File and Sharpening Co, 16 Stew. Eq. 413, overruled.</p>

<p>1. The dismissal of a bill is no bar to a subsequent suit for the same cause of action where it does not appear that the former suit was between the same parties and that it was tried upon its merits.</p> <p>2. Where it appears that the rights of one of the complainants, which he holds by assignment from the other, depends entirely upon the success of that other, the general statement showing that the extent of his rights is to be determined by the amount which he shall have advanced, the rule requiring certainty to a common intent is complied with, or if not, a reasonable exception is presented, since from the nature of the case the amount to be advanced is uncertain.</p> <p>3. Upon the question of laches it is not material that it does not appear when the interests of a co-complainant were acquired, if such interests depend entirely upon the success of the complainant.</p> <p>4. On a bill filed to rescind a contract on the ground of fraud, if it is alleged that the property which the complainant took title to under the contract was sold and conveyed by virtue of a prior existing lien so that he was thereby unable to restore it to the defendant, a demurrer will not offer to restore it.</p> <p>5. Where suit was commenced within three months after the discovery of the alleged fraud, for the rescission of the contract, which suit was dismissed without hearing upon its merits and without the words “without prejudice,” and another suit commenced for the same cause within a reasonable time, the complainant is not chargeable with laches.</p> <p>6. It is not multifarious to onng all the parties into court as defendants wha are alleged to have some interest in the subject-matter of the controversy whether as original contractors or as their grantees or assignees.</p>

<p>1. Every wife is entitled to a lióme corresponding with the circumstances and condition of her husband, over which she shall be permitted to preside as such wife, and it is the duty of the husband to furnish such home.</p> <p>2. A house over which others have entire control and in which the husband and wife reside as boarders simply, is not such home.</p>

Final hearing on bill, answers and proofs. The bill is filed by an executor for directions in the execution of the will. The questions raised arise between the legatees and the heirs-at-law, and are, first, whether the real estate of which the testator died seized passed by the will, or whether he died intestate as to it; and, second, if it passed by the will, then whether the executors have a power of sale.

<p>1. A bona fide mortgage, given by a devisee upon lands devised to him, and executed before suit brought against such devisee upon the debt of the testator, is an alienation pro tanto of the lands, and will take precedence over a judgment recovered against the devisee upon the debt of the testator.</p> <p>2. Notwithstanding the reversal, in part, by the court of errors and appeals, of the judgment of the supreme court, reported in Den v. Jaques, 5 Halst. 259, the law of this state has ever since been in accord with the declaration of the supreme court in that case with regard to the effect of such a mortgage.</p>

<p>Bill to foreclose.</p>

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

<p>1. A mortgage is a mere incident to the debt which, it is given to secure, and stands or falls with it.</p> <p>2. An assignee for value, of a mortgage, by deed of assignment, in form a conveyance of land, does not thereby attain the position of a purchaser for value without notice, but takes subject to all defences which the mortgagor or his grantor has to the debt which the mortgage is given to secure.</p> <p>3. A mere failure of the obligor and mortgagor to take proceedings to procure the discharge of record and delivery up of a mortgage, to which he has a valid defence, does not estop him from setting up such defence against an assignee for value without notice.</p> <p>4. It is the duty of a person about to take the assignment of a bond and mortgage to inquire of the obligor and mortgagor as to his liability thereon.</p> <p>5. The third section of the act of February 25th, 1880 (P. L. p. S3), has no application to a mortgage to which the obligor and mortgagor has a valid defence, and does not have the effect of giving the assignee of such a mortgage the position of a purchaser for value of lands.</p> <p>6. The owner of land, upon which he had recently executed a mortgage, obtained from him by a fraud not yet discovered, conveyed a portion of it without consideration to a corporation, of which he was the principal stockholder, by a deed which stated merely that it was conveyed subject to the mortgage, and did not assume it. — Held, in a suit to foreclose the mortgage, that the corporation was not estopped from setting up the same defence which the mortgagor had.</p> <p>7. In such case, the right of the mortgagee or his assignee to call on the grantee of a part of the mortgaged premises to pay the mortgage is no greater than that of the mortgagor.</p>

Heard on bill, answers and proofs. The defendants were named executors in the last will and testament of Ephraim Waters, deceased. The will was made in April, 1866, the testator died in July, 1866, and the will was proven and letters testamentary issued to the defendants on the 8th of August, 1866.

On petition of the complainant, praying that the purchasers at sheriff’s sale, under an execution issued upon, decree herein, should be compelled to complete their purchase.

Heard on bill and answers. The object of the bill is to obtain the direction of the court in the final execution of the will of James H. Dandy, deceased. The clause of the will upon which the executor is in doubt is as follows : “ Third.

<p>1. A chattel mortgage was given by a trading corporation to F. to secure a debt of §2,000 due to himself and also certain debts due to seven other persons, aggregating §153,000. The affidavit annexed was made by F., and stated that the mortgage was made to him as trustee to secure the payment of certain indebtedness of the mortgagor, specifying the several sums and persons to whom due, and stating in each instance that the indebtedness consisted of money loaned and advanced to the mortgagor by the creditor named, and that there was due in the aggregate the sum above mentioned, but did not state that the deponent was the agent or attorney of the several creditors or either of them, or that he had any personal knowledge of such consideration. — Held, that the affidavit was insufficient except as to the amount due to the trustee.</p> <p>2. Several months after the giving of the mortgage, and before any possession had under it, the sheriff levied on the mortgaged chattels by virtue of executions against the corporation, and after such levy F., the trustee, made the sheriff his bailiff to hold and sell the chattels. He permitted the corporation to use some of the chattels while in his possession. Before a sale creditors of the corporation filed a bill for a receiver and obtained an injunction restraining it. By arrangement the sale proceeded and a portion of the proceeds were paid into court to answer the demands of the laborers for wages due. — Held, that the possession taken by ike trustee did not validate the mortgage as against judgment creditors.</p> <p>3. The spirit of the provision of the Chattel Mortgage act requiring an affidavit is that the affidavit should he made by the actual creditor or one who has personal knowledge of the consideration of the mortgage.</p>

<p>Final hearing on pleadings and oral proofs.</p>

<p>1. An action cannot be maintained in equity, any more than at law, on a parol contract for an interest in lands, when the defendant, by his answer, denies the contract.</p> <p>2. M., a married woman, living separate from her husband, was the former owner of three tracts of land, which were afterwards sold at sheriff’s sale on foreclosure to A., the mortgagee. A., by agreement with M., held his bid for the property for M.’s benefit as well as his own security. A. afterwards sold one tract at an advance and credited such advance on M.’s indebtedness, leaving some $1,600 still due A. M. then negotiated a loan, in her own name, of $7,000, with an insurance company, on the two remaining lots. S. had for years been the personal friend of M., had advised her in her business affairs, and particularly as to this property, and had full knowledge of the agreement between A. and M. to hold it for her benefit. S., with M.’s consent, had himself substituted in her place in the loan from the insurance company, took title from the sheriff under A.’s bid, made the mortgage to the insurance company, and with the proceeds thereof and $1,683.67 of his own money paid off aE prior encumbrances on the property, including A.’s'debt. The property at the tíme was worth from $1,400 to $7,600 more than the insurance company’s mortgage and the amount advanced by S. — Held, that 8. occupied a position of trust and confidence towards M. in the transaction, and must be held to have acted therein as her trustee, and' that the deed must be construed to be a mortgage to secure S. for the money paid out by him in clearing off the encumbrances.</p>

<p>A devise to A., and at his death to his wife, applies only to the person who was his wife at the date of the execution of the will, and does not extend to a wife taken subsequently thereto.</p>

<p>1. Testator bequeathed $150 to A.,-charged on land devised by the will, and' payable within two years after his death, provided she should be in good health and mind, and, in case she should not be in good health and mind, within three years after testator’s death the sum should be paid to her three children, in equal parts, as they arrived at' the age of twenty-one years, respectively.: — JETeld, that where the alternative clause of the will- came into effect by reason of A.’s insanity at the time of testator’s death, and her failure to recover her reason ydthin three years thereafter, the bequest, as to one of her children, lapsed, where he died before reaching the age of twenty-one years.</p> <p>2. Where the other two children are minors, the person to whom the land on which the payment of the-legacy is chargeable is devised may pay it into-court, where it shall remain until the time at which, by the provisions of the will, it may be payable; Rev. p. 1848, providing for the payment into court of legacies charged by will on land, where the vesting of the legacy may be contingent.</p>

<p>Rev. “Ghaneery” $ 41, which provides that “where, after the filing of the bill, any person acquires such an interest in the subject-matter of the suit as would have made him a proper or necessary party if such interest had been possessed by him at the commencement of the suit, it shall not be necessary to file a supplementary bill to make such person a party, but the same may be done by petition filed in the cause,” does not allow one who, pending a foreclosure suit, has acquired a contested claim to part of the surplus paid into court on the foreclosure sale, after satisfying the complainant’s mortgage, to be made a party 'to the suit by petition, after final decree, for the purpose of enforcing such claim.</p>

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

<p>A man may habitually indulge in intoxicants and yet possess testamentary ■capacity, if at the very time of the execution of the will he was able to and did clearly comprehend the nature and effect of the business in which he was engaged.</p>

<p>1. It being assumed that M. instructed J. to prepare her will, and that, after preparing the will,, J. entered the room where M. was with two persons, whom he had asked to be witnesses to the execution of the will, and, in their presence, announced to M, that he had brought those persons to witness the will, and thereupon M., understanding the character and contents of the document, signed it in presence of the persons so brought in. — Held, that the requirement ;of the statute, that the will should be declared by the testatrix in the presence of the witnesses, was sufficiently complied with.</p> <p>2. A woman ninety-four years of age, suffering with an intestinal complaint which caused her intense pain when she was not under the influence of narcotics, to whom opium was administered every hour, the effect of which was either to make her drowsy and lethargic or to put her to sleep; who was so-enfeebled that she could not rise in her bed or'read or write, within four days from her'death, and after her physician had pronounced her to be in a dying, condition, at the instance of a nephew, executed a will which gave substantially her entire estate to that nephew, taking it from her husband and only brother, between whom she had divided it by will a little more than a month before. — Held, that, even though she may have possessed testamentary capacity, the proponent of the will must affirmatively establish, by clear and satisfactory proof, that the will was read to her and understood by her.</p>

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

<p>On appeal from an order of the Middlesex county orphans court confirming the sale of lands for the payment of debts.</p>

<p>1. If a parol contract relating to land, that has been in part performed, can be specifically performed, such contract must he proved to the point of demonstration.</p> <p>2. The proof in this case held to be insufficient.</p>

Clark et al., who delivered the following statement of his conclusions: That part of the contract which must be considered in deciding the questions raised in this case is expressed substantially in these words : The obligors shall well and truly pay to the complainant $8,000 in the manner following: By the payment of dues of twenty-five cents per week, on the first and third Tuesdays of each month, on each of the forty shares of the fifth series of the capital stock of the…

Megie, advised by Vice-Chancellor Van Fleet, who furnished the following statement of his conclusions: This case ought to be decided before it will be possible for me to give sufficient time to it to prepare a formal opinion. I shall, therefore, decide it now by giving a brief statement of the reasons which have led my mind to the conclusion that the complainant is entitled to relief.

On cross-appeals from a decree of the court of chancery, made upon the advice of Frederic Adams, Esq., master. The decree of this court, founded on the opinion reported in 16 Stew. Eq. 669, reversed a previous decree of the court of chancery, and fixed the measure of relief to which Vanderbilt & Hopkins (who were petitioners in that court) were here adjudged entitled. The cause was thereafter remitted, and the decree of this court was made the decree of the court of chancery.

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

<p>If certain parties agree to sell land to another party, who agrees to take the-same and pay a named consideration therefor, upon the delivery to him of a proper deed, and he demands a conveyance of more land than in equity he is-entitled to, and refuses to pay the consideration unless his demand is complied with, and after such refusal the land is conveyed to another, who has full knowledge of such demand and refusal — Held, that the party making such demand cannot thereafter claim specific performance of the contract, but he will, be left to his remedy at law.</p>

<p>1. A testator who can comprehend the property he is about to dispose of by will, 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 other and the disposition which his will mates, at the time of executing the will, possesses-testamentary capacity.</p> <p>2. The influence which the law denominates undue, and which vitiates a will executed under it, must amount to moral or physical coercion, destroying, free agency and constraining its subject to do that which but for it he would-not do.</p>

Daniel Linch, being the owner of two hundred and fifty-two acres of land, sold it to his sons, Helms and Samuel, for $16,380, in January, 1866. They paid therefor by giving two mortgages, one for $5,000 and one for $11,380. March 15th, 1866,. Daniel Linch assigned the $5,000 to the defendant, C. L. Vanneman, who further assigned it in the year 1876.

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Hadden v. Dandy, 6 Dick. Ch. Rep. 154.</p>

Christie, advised by Vice-Chancellor Green, who delivered the following opinion : In May, 1890, complainant commenced an action in the supreme court against the defendant, Jonathan S. Christie, and recovered a judgment therein on August 8th, 1890, for $4,504.83.

The bill was originally filed by Christian Grimm in his lifetime, and alleges substantially that in the early part of 1890 Thomas J. Cottrell induced the complainant to purchase a naphtha launch, and rent it to said Cottrell, under representations that one could be bought for $1,500, and that the hiring of one to pleasure parties on the Shrewsbury river could be made to earn the first cost in a year or two.

<p>1. Where a grantor, retaining a portion of the land out of which the grant-is made, enters into an express written understanding with his grantee, whatever may be its form, whether covenant, condition, reservation or exception, ■which restricts the enjoyment of the portion of the land which is conveyed in order to benefit the portion retained, and the restriction is reasonable and consonant with public policy, whether it runs with the land and is binding at law or not, it will be enforced in equity against the grantee and any one subsequently acquiring title to the land with notice of it, at the instance of the grantor or of the subsequent owner or owners of parts of the remaining land, when its violation results in material detriment to the portion of the remaining land which the complainant in the suit for its enforcement holds.</p> <p>2. Where such express written understanding is incorporated in a deed which constitutes a muniment of title to the land, the law conclusively charges each subsequent holder of the title with notice of it.</p> <p>3. If the restriction of enjoyment of the alienated land extends to the use of it by an elevated railroad, although the railroad be operated with care and skill, the owner of the land, for the benefit of which the understanding was had, may cause the inhibited use to be restrained by injunction.</p>

Ou motion for the allowance of costs and expenses from the-estate of an alleged lunatic, who died before inquisition of lunacy had. Frank W. Farrell, a brother of William E. Farrell, sued out a commission in the nature of a writ de lunático inquirendo, under which inquest was’had in November, 1892.

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

<p>Ou order to show cause why a preliminary injunction shall» not issue.</p>

<p>1. The statute of 1892 (P. L. of 1892 p. 426), giving workmen in the employ of corporations a lien for two months’ wages in case of insolvency, supersedes and repeals the prior statutes on that subject.</p> <p>2. When two statutes on the same subject are repugnant in any of their provisions, the later, without words of repeal, operates, to the extent of the -repugnancy, as a repeal of the earlier.</p> <p>3. And when two statutes are not in express terms repugnant, yet if the later covers the whole subject-matter of the first, and contains new provisions plainly showing that it was intended as a substitute for the earlier, it will operate as a repeal of the first.</p>

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

<p>1. While an administrator of a deceased mortgagor is not a necessary party to a suit for the foreclosure of a mortgage, on the land of his intestate, he is a proper party.</p> <p>2. The'exemption from suit granted to an administrator by the fifty-seventh section of the Orphans Court act {Rev. p. 768), does not extend to a foreclosure suit in which no relief is sought either against the administrator or the estate which he represents.</p>

<p>A writ of ne exeat, as the law now stands, may be granted on affidavits made before a suit is pending in court between the parties.</p>

<p>On final hearing on bill and answers and proofs taken orally.-</p>

<p>If in proceedings by a railroad company to condemn lands under its charter it fails to give notice to a mortgagee, and such mortgagee surrenders liismortgage and accepts another from the owner of the premises for a larger sum, which he has recorded pending the proceedings to condemn, but before the award is filed in the office of the clerk, the condemnation proceedings are subject to such new mortgage, and the distribution of the moneys awarded to-the owner will not bar the mortgagee from recovering the whole amount of said award and interest, or so much as may be necessary to pay the balance due after the sale of the lands covered by the mortgage and not included in the condemnation. In such case interest is to be computed on the award from the time when the balance due is ascertained. In such case, also, the mortgagee is not chargeable with neglect if he files his bill at any time within the statutory period.</p>

<p>On bill for construction of will and to enforce an agreement.</p>

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

<p>1. A bill asking for the specific performance of an order directing the payment of alimony, by giving a mortgage on lands in this state, made upon a judgment in a suit for divorce from the bonds of matrimony in a sister state, will not be sustained on a motion to strike out under the rules, in the nature •of a demurrer.</p> <p>2. Such judgment, when properly obtained, is only prima fade evidence, in another state, of the matters litigated therein, and can only be enforced in such sister state by another suit.</p> <p>3. So long as the court in which such judgment was originally obtained has jurisdiction of the person, such order can be enforced against, him by the ■court by compelling him to execute it.</p>

<p>1. Complainant endorsed a promissory note for the accommodation of C. & D., who at the same time lodged with him their title deed to a lot of land, with a written memorandum signed by them to the effect that he should hold it as security for his endorsement. Afterward C. & D. failed and made a general assignment for the benefit of their creditors to defendant, and complainant was obliged to pay the note. — Held, complainant had an equitable charge on the land for the amount so paid, enforceable against the defendant. Van Doren v. Todd, 3 Gr. Ch. 397, followed; Currie v. Knight, 7 Stew. Eq. 485, and Receiver v. Spielmann, 5 Dick. Ch. Rep. 120, distinguished.</p> <p>2. The holder of an unrecorded equitable charge upon land given for a full consideration moving at the date of its creation is entitled to priority over a ■ subsequent legal mortgage given to secure a prior indebtedness.</p>

Final hearing on bill, answer and proofs in open court. The parties hereto are owners of adjoining lots of land, and the object of the bill is to establish a right in the complainant, .as such owner, to a carriage and wagonway from her lot across the lot of the defendant to the public highway, and to have the same designated upon the ground.

<p>1. In an action by an heir against the administratrix of his father’s estate- and other heirs, and against V., the husband of one of the heirs, and G., to-set aside assignments by complainant to G., and by the latter to V., of the-former’s interest in such estate, and for an account, it appeared that complainant was estranged from his family and in indigent circumstances; that hisfatlier was a man of large means; that at the time of his death his business was complicated and he was largely in debt; that two years thereafter complainant, for §250, made such assignment to G., who immediately assigned toY. ;‘that at the time complainant had a general knowledge that assets of the estate, consisting of bonds and railroad stocks and real estate, were being suppressed, but had been repeatedly assured, and then believed, that the estate was insolvent; that G. had been interested in business with deceased and had aided the administratrix in settling the estate; that both he and V. knew the-condition of the estate, and that it was not insolvent; that they knew plaintiff’s circumstances, and G. represented to him that the estate was insolvent- and his interest was of no real value; that prior thereto Y. had told G. that he would pay not to exceed §500 for such assignment, and did pay §350 therefor ; and that in distributing the suppressed assets among the heirs, which was-■done outside of the probate court, Y. received the amount to which complain.ant would have been entitled. — Held, that complainant was entitled to have ■such assignments set aside and to a reconveyance by V. to him in such manner as to pass title to real estate, and to an account against V. of what he had received under such distribution.</p> <p>■ 2. The fact that complainant is of a low, degraded character, and treated his mother in an unfilial and outrageous manner, is no ground for refusing him relief.</p> <p>3. Though complainant stands in pari delicto with V. as to the suppression •of assets, such fact does not warrant withholding relief when it is not set up in the answer.</p> <p>4. Since V. received, by virtue of the assignment, whatever share complain.ant was entitled to, he is estopped to deny that the latter was entitled to receive it.</p> <p>5. Where V. exercised the controlling influence in suppressing such assets, and complainant merely acquiesced in it, the latter is not in pari delicto.</p> <p>6. Since G-. appeared by the same solicitor as the other defendants, and his answer was framed in their interest, and was untruthful, he is not entitled to •costs.</p>

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

<p>1. In a suit in equity by a judgment creditor to subject to the lien of his judgment lands held by a third party in fraudulent trust for the judgment ■debtor, it is not competent for the trustees to question the judgment on any ground except that it was recovered by fraudulent collusion between the plaintiff and defendant therein.</p> <p>2. Such trustee cannot take advantage of any illegal quality in the consideration of the judgment, which would have constituted a good defence if set up in an action in this state.</p> <p>3. A husband paid for and caused to be conveyed to his wife a tract of land upon which were a race-track and the stabling and other improvements suited thereto, together with a plain dwelling. He also caused to be conveyed to her other adjoining tracts, which he added to the race-course tract, and expended upon these lands large sums in additional stabling and barns and an ■expensive club-house, and placed upon the premises stallions and mares for breeding purposes, and with his wife’s knowledge and acquiescence carried on there the business of breeding horses in his own name, and appeared to the outside world as the owner thereof, while the title stood on the public records in the name of his wife. At the date of the settlement, and thence almost continuously until his failure, he was operating largely upon margins upon the New York Stock Exchange. — Held, that subsequent creditors of the husband, who became such in reliance upon such apparent ownership, are entitled to have the lands subjected to the lien of their judgment.</p> <p>4. Semble — that the true ground upon which creditors are entitled to set aside a settlement made by their debtor prior to the accrual of their debts, is that the debtor was permitted by the beneficiary to be and remain in the apparent ownership of the settled property, and to obtain financial credit on the strength of his apparent ownership.</p> <p>5. Where a party, being in insolvent circumstances, conveys property to his wife for a consideration several times less than its value, with intent to place it beyond the reach of his creditors, a court of equity, in a suit by a judgment creditor to set aside such conveyance, will not treat it as a mortgage, but will set it aside absolutely.</p>

<p>Complainant, as executor of A, borrowed money of B, to be used, and which he did use, to pay the debts of A, in order to avoid the necessity of selling lands to pay them. Without having settled his account as executor, he was discharged by the court, subject to his duty to account, and an administrator am testamento awnexo was appointed in his place. Afterwards B died testate-of a will, of which complainant was appointed executor, and, as such, he filed his bill against the devisees of A for relief by way of a lien on the lands for the money he had previously borrowed. — Held, that he was entitled as executor of B to be subrogated' to his rights as executor of A to a lien upon her lands for so much money as it should be found upon an accounting as executor of A he had applied for that purpose.</p>

<p>An order for alimony pendente life, which has come to an end by reason of a decree in favor of the husband, is not revived by a decree of the court of errors and appeals simply reversing the former decree, and remanding the cause for further proceedings, since, under the act (Rev. p. 215), the lower court can give effect only to the decree as actually rendered, and without addition or modification.</p>

<p>1. Where a foreign manufacturing corporation removes to New Jersey, and executes a chattel and real estate mortgage on property within the state to resident creditors to secure the payment of debts contracted and payable there, which mortgage is valid in New Jersey, and under the particular statute of such foreign state under which the corporation was created, such mortgage will not be held invalid because the execution thereof was contrary to a general statute of such foreign state inhibiting such corporations from transferring their property to stockholders, officers or creditors thereof, in contemplation of insolvency.</p> <p>2. Where, in an action by a receiver of such corporation to set aside the mortgage, such foreign statute inhibiting such transfers is imperfectly pleaded in the bill, complainant will be granted leave, on request made during the trial, to amend his bill by properly pleading such statute, so as to render the latter admissible in evidence.</p> <p>3. The question of the.allowance of such amendment is not governed by the rule that the court will not grant a favor to the defendant by way of extending time to plead, or to answer or amend the same, where he is in default, except on terms that he shall not interpose a plea of a mere statutory bar which does not reach the merits of the case, and which is termed unconscionable.</p>

<p>Testator, besides other legacies, gave C. certain furniture, and also gave her and other nieces $500 each, and directed the residue of his estate to be divided equally between C. and three other nieces named. By codicil he gave C. “ the further sum of $1,000, in consideration of her faithful attention to” him, and directed “that no part .of said sum of $1,000 shall be taken from the share of said ” O., as provided in his will, and that, “ in case it shall become necessary, the said sum shall be taken from the other legacies and bequests p'o rata.” After payment of all except the residuary legacies and the legacy of $1,000 to O., $15,609 remained. — Held, that C. was entitled to receive one-fourth of such remaining sum before payment to her of the $1,000 legacy, and the latter should be paid out of the remaining three-fourths of the former sum.</p>

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

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

<p>On bill, answer, replication and proofs in open court.</p>

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

<p>On appeal from a decree advised by Vice-Chancellor Bird, whose opinion is reported in Hattersley v. Bissett, 5 Dick. Ch. Rep. 577.</p>

, the Continental Iron Works, and August Bretthauer are encumbrances on the building and curtilage “ prior to the mortgage of the complainant, or any bond or debt, or interest secured, or intended to be secured, by said mortgage.”

<p>On appeal from an order of the chancellor denying the petition of the appellant, as stated below, and from the decree confirming the inquisition.</p>

Hope Manufacturing Co., 6 Dick. Ch. Rep. 162. In this case the bill of complaint was filed on behalf of the operatives of the Hope Manufacturing Company, an insolvent corporation, to secure their wages for labor performed during thirty days prior to January 30th, 1892.

<p>On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is reported in Barnard v. Barlow, 5 Dick. Ch. Rep. 131.</p>

<p>On appeal from a decree advised by Vice-Chancellor Bird, who delivered the following opinion in the court below:</p>

<p>On appeal from an order advised by Vice-Chancellor Pitney in New York Life Insurance Co. v. Thomas G. Murphy et al., who delivered the following opinion:</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in Merritt v. Merritt, 8 Dick. Ch. Rep. 1.</p>