Volume 54 — New Jersey Equity Reports

<p>On bill, answer, replication and proofs.</p> <p>The object of this bill is to question the validity of the trust proposed in the will of Hezekiah B. Smith, deceased. The will is as follows:</p> <p>“In the name of God, amen: I, Hezekiah B. Smith, of Smithville, Burlington county, New Jersey, being of sound mind, memory and understanding, ■do make and publish this my last will and testament in manner following, that is to say:</p> <p>“After payment of my just debts and charges, I devise and bequeath all of my property — personal and real, to a Board of Trustees, to be composed as follows, namely: Edward F. Burns, Joseph J. White, Bradford W. Storey, George A. Lippincott, Charles H. Chickering, and George D. Field, all of whom are stockholders in the H. B. Smith Machine Company, of Smithville, New Jersey, Andrew J. Smith, of Hightstown, New Jersey, and Eayre O. Lippincott and Benjamin F. Crozier, of Smithville, Burlington County, New Jersey, being nine in all; and in case of the resignation or death of any Of the said Board of Trustees, the vacancy shall be filled by a vote of the remaining Board, and preferably, with shareholders of The H. B. Smith Machine Company, that the mutual interests now established may continue.</p> <p>“ I hereby constitute and appoint Andrew J. Smith, President of the Board of Trustees, and he shall receive a fair compensation or salary for actual services performed, the amount to be determined by the said Board of Trustees; and in case of the resignation or death of the President, his successor in office is to be elected by the remaining members of the Board of Trustees.</p> <p>“ The President of the Board shall be expected to give sufficient time to carry out the objects of my will, and he shall receive his authority from a two-thirds majority of said Board of Trustees. In all cases involving the sale or purchase of property, and in the expenditure of money, it shall be done only with the assent of a two-thirds majority of the said Board of Trustees; therefore four dissenting voices in said Board would prevent the disposition or expenditure of property or the prosecution of plans not endorsed by at least six of the said Board of Trustees.</p> <p>“ The property and estate herein bequeathed is to be held in trust by the said Board of Trustees for the following object, namely: I desire that my entire estate with its accumulations shall be used in establishing and conducting a School for Apprentices and Young Mechanics on plans to be hereafter described by me; or in case of my death before perfecting said plans, the school above named is to be conducted on plans which I have from time to time described to most of the Board of Trustees herein named and who shall approve of final practical plans in keeping therewith.</p> <p>“And I do hereby constitute the members of the Board of Trustees aforesaid, executors of this my last will and testament.</p> <p>“ In witness whereof” &c.</p> <p>The complainants are the widow and children of the testator, and the defendants are the nine persons named in the will as trustees and executors.</p> <p>The testator died at Smithville, in Burlington county, seized and possessed of property worth in the neighborhood of half a million dollars, a large portion of which is represented by a controlling interest in the stock of the H. B. Smith Machine Company, a corporation engaged, as its name indicates, in the manufacture of machinery. He died without having, by testamentary or other instrument, described perfected plans for the •school proposed by his will, but in conversations at various times with the several executors or trustees, before his death, he to some extent indicated crude general ideas with reference to the school. The defendants have collected, and stated in the form of a minute, his fragmentary communications to one or the other of them from time to time, which minute, for present purposes, serves to epitomize that which their testimony is claimed to have estabfished as the substance of his conception of the character of the proposed school communicated to them. The minute is this:</p> <p>“First. Admit hard-handed country boys, accustomed to labor. Let them work in the shops ten hours a'day and attend school evenings for two years. Then give them one year of instruction in practical English branches, such as would be useful to mechanics. Give them an opportunity to devote their entire time to study during a third year. The expense of boarding and clothing the young men to be paid by the estate, the clothing being uniform. The school to be located in the village of Smithville, Burlington county, New Jersey, and to be operated in connection with the works of the H. B. Smith Machine Company.”</p>

<p>1. Where the aid of the court of chancery is invoked to effect the crossing of one railroad by another, and it appears that the right to cross has been duly condemned, and that the damages in condemnation have been based upon a manner of constructing the crossing proposed by the junior road, which is claimed to be unlawful or at least unfair, this court will, incidentally to the exercise of its jurisdiction in the premises, determine the legality of the proposed manner of crossing.</p> <p>2. A preliminary injunction will not issue where the right of the complainant is in doubt.</p> <p>3. An order which finally disposes of all matters involved in the cause will ordinarily not be made until final hearing.</p>

<p>1. A lapse of twenty years after a mortgage has become due, within which there has not been either payment or demand of the principal or interest, or part thereof, or entry by the mortgagee into possession of the mortgaged premises, will raise a presumption that the mortgage has been satisfied, though in fact it be not paid.</p> <p>2. Such presumption may be taken advantage of by demurrer to a bill which alleges the facts raising it without averring circumstances which will rebut it.</p> <p>3. Lapse of time will not be allowed to defeat an express trust, cognizable in equity alone, which continues to be acknowledged and acted upon by the parties.</p> <p>4. When the relation of trustee and eestui que trust is no longer admitted to exist, or gross laches in enforcing a known right or long acquiescence in the alleged breach of trust, is shown, and lapse of time has obscured the nature and character of the trust, or the acts of the parties or other circumstances give rise to presumption unfavorable to its continuance, a court of equity, even in case of an express trust, will refuse relief upon the ground of lapse of time and its inability to do certain and complete justice.</p> <p>5. A mortgagor became the executor of the will of his father, .the mortgagee, before his mortgage was paid, the beneficiaries under the father’s will being his mother for her life, and his brothers, sisters, two nephews and himself, in remainder. After the mortgage became due and his mother died, he retained possession of the mortgaged premises, and failed to pay interest upon the mortgage or to pay any part of the principal thereof, for fifteen years, within which time he sold a portion of the premises, and then, never having accounted as executor, executed a satisfaction of the mortgage, and thereafter, continuing in possession of the mortgaged premises, sold other portions thereof, and yet failing to pay either principal or interest, lived four years and died. Three years after his death,' no part of the principal or interest of the mortgage having yet been paid, the administrator de bonis non &c. of the estate of the father filed his bill to foreclose the mortgage. Upon demurrer to the bill on the ground that more than twenty years had elapsed since the making of •the mortgage,within which neither principal nor interest had been paid — Held, that the presumption arising from such- lapse of time without the payment indicated, was rebutted by the implication arising from the executor’s failure to account, his execution of the satisfaction and the near relationship between him and the other beneficiaries of his father’s estate.</p>

<p>Ou petition for leave to present claim.</p>

On demurrer to bill. The complainant’s bill alleges that on the 2d of May, 1890, Archibald Freeburn, being indebted to the complainant in the sum of $5,500, together with his wife, Sarah, mortgaged to the complainant the fee of certain premises, situate in the city of Bayonne, in this state, to secure to it the payment of that money in manner'specified in the bill; that on the 11th of August, 1892, Sarah, the wife of Freeburn, died; that on the 15th of April, 1895, Freeburn…

<p>On order to show cause why an injunction shall not issue to stay proceedings in condemnation &c., heard on bill, maps and affidavits, and answers, maps and affidavits.</p> <p>The bill alleges that the complainant owns and occupies several hundred acres of land in Morris and Passaic counties, which he designs to improve and use for country residences; that a portion of his land adjoins property of the Proprietors of the Morris Aqueduct Company, and upon it exist springs and streams of water which are capable of being used to beautify his property and enhance its value; that the aqueduct company to aid it in its duty of supplying the town of Morristown with water, desired to acquire the water of those streams and utilize springs upon its own lands by conducting them into the streams of'the complainant and through and by those streams to its settling basins and reservoirs; that, with this object in view, it deliberately entered upon the lands of the complainant, without his permission, and, at points, dug out and completely filled up portions of the beds of his streams, conducting the water through covered tile drains, and thus destroyed the natural appearance of his land, which clearly manifested its fitness for the purposes aforesaid, to which he designed to devote it; that after those trespasses the aqueduct company applied to a justice of the supreme court for the appointment of commissioners in condemnation proceedings under the statute entitled “An act for the construction, maintenance and operation of water works for the purpose of supplying cities, towns and villages of this state with water,” approved April 21st, 1876 (Rev. p. 1S65), to appraise the value of a designated portion of the complainant’s land to be taken, and the damages to other parts of his land which would be occasioned by laying and maintaining a tile drain not more than six inches in diameter, four feet below the surface of the laud, protected by a surface drain on each side of it, designed to prevent surface water from reaching the drain and contaminating the spring water flowing through it; that commissioners were appointed and viewed the premises in obedience to the statutory requirement, before making their award, and found there the changes wrought by the defendant’s trespassers, which were of such character that the commissioners were unable to ascertain the original appearance of the land and the advantages of the natural water-courses to it; that the defendant company denies having made certain changes which the complainant insists that it did make, and that the commissioners cannot, by the testimony of witnesses, obtain a satisfactory conception of the natural appearance of the complainant’s land. Thé bill prays that the defendant company may be enjoined from further prosecution of its condemnation proceedings, and that the commissioners may be restrained from making their award until the complainant’s premises shall be restored, by the defendant company, to their natural condition and be viewed in that condition, and that the defendant company may be restrained from continuing to maintain its pipe drains and the altered streams upon the complainant’s land, which divert the waters from their natural courses.</p> <p>' By its answer, supported by several affidavits, the defendant company avers that the complainant’s land in question lies at an outskirt of his domain a mile and a half from his dwelling-house, a half mile from any other dwelling on his land and a quarter of a mile from a public highway, and that it is a deep hollow and swamp, covered with briers, brush and trees, and has never been put to any beneficial use by the complainant and is at least a mile from any beautifying improvements made by him; that the defendant company is the owner of land on the east, south and west of the land in question; that upon its land to the east there are several springs, which, in state of nature, yielded a small rivulet, which ran upon the complainant’s land for a short distance and then out of its southerly boundary upon the defendant company’s land and then back to the complainant’s land again, and, further on easterly, again upon the defendant’s land; that in order to secure a full flow from its springs on the east, uncontaminated by surface drainage, the defendant company dug down to them, and by means of several covered tile drains, laid four or five feet below.the surface of the earth, conveyed the water to the bed of the rivulet in the complainant’s land and, the drain at that point being some three feet below the surface of the bed of the rivulet, entered upon the complainant’s land and deepened the bed of the rivulet there, which descended as it ran westerly, from three feet at the boundary of complainant’s land to nothing at seventy-five feet westerly from that boundary and, finding that the sides of the excavation, by reason of the depth for the first twenty feet, through the influence of frost or surface wash, were apt in time to fall in, for that distance continued its tile drain upon the complainant’s land and filled in the bed of the stream over it; that for four hundred feet the rivulet, being constantly enlarged by tributaries, ran through the complainant’s land southwesterly in its natural state, until it crossed the boundary into land of the defendant company; that upon its land south of the complainant’s property the defendant company by other drains, from springs upon its land there, increased the volume of the stream, and to facilitate the running of the water, straightened and deepened the channel until in a straight line it again entered the complainant’s land, and by that straightening process it may have cut off from the complainant a few feet of the stream, as the complainant insists, made by a bend, running into his land easterly of the point where the straightened stream now enters it; that at the extreme southwesterly corner of the complainant’s premises a small rivulet from the defendant company’s land, the water of which can be discharged through a pipe one inch in diameter, entered the complainant’s property and ran northerly fifty or sixty feet to the main stream, and by means of a little drain, in part constructed across a corner of the complainant’s land, the rivulet was entirely diverted from the complainant’s property; that otherwise than in the particular stated, the complainant’s property was undisturbed ; that all these changes are readily discernible upon the ground, except perhaps the cutting off of the bend, and whether a bend was in fact cut off the defendant company doubts, but nevertheless admits and, prior to the filing of the bill, at the time of the view by the commissioners, did admit to the commissioners, for the purposes of the condemnation, according to the complainant’s assertion of the fact; that all these changes were made in the summer of 1893, nearly two years prior to the commencement of the condemnation-proceedings, when the relations between the complainant and the defendant company were amicable and they were negotiating for a sale of the rights which the company now seeks by condemnation, and' in the presence of the overseer and workmen of the complainant and not clandestinely; that the changes were not made in contemplation of condemnation proceedings, nor with intent to embarrass those proceedings; that the changes are visible and were readily ascertainable by the commissioners when they viewed the premises, and they have benefited the complainant in the proceedings in condemnation by adding to the volume of the water in the streamthat until the bill in this case was filed, and until after the commissioners’ view was had at the expense of the defendant company,- the complainant failed to indicate any desire that the property should be restored to its former condition; that such restoration would be expensive and would not be productive of any practical use in the condemnation proceedings; that if made in good faith it is doubtful whether the complainant would be satisfied with it and would not dispute its accuracy in a prolonged litigation.</p> <p>The three commissioners in condemnation, who are made defendants, answer that their view of the lands was satisfactory to them; that they understood that they were to regard the change in the stream at the bend referred to as having been made by the defendant company in manner insisted upon by the complainant; that the changes in the bed and course of the stream “were very slight and that they had no difficulty in seeing and understanding just how and where the stream ran in its natural condition and the quantity of water naturally running and the natural appearance of the ground; ” that the changes will not create any difficulty in their reaching a proper estimate of the value of the land and rights taken and the damage caused by the proposed works to the complainant.</p>

On bill and answer. The bill alleges that iu the year 1865 Mefford Runyon conveyed to the complainant the timber growing, and thereafter to grow, upon a piece of land in Middlesex county, and in the year 1867 conveyed to him in fee a parcel of land adjoining the first-mentioned property; that the complainant took possession of the parcels of land and fenced them in one enclosure, and yet retains that possession; that the properties could be reached only by means of a private…

<p>1. A corporation organized, under the laws of this state, which is in an insolvent condition, cannot prefer, as a creditor, one of its officers.</p> <p>2. The president of a corporation in an insolvent condition, who is also its creditor to a large amount for cash advanced, brought suit against it on one day, resigned as president and director the next day, and on the third day the directors accepted the resignation and authorized an attorney to give a cognovit, upon which judgment was at once entered. — Held, that the creditor could not have a preference by virtue of such a judgment.</p> <p>3. Other judgments had been recovered by outside creditors against the corporation, in due course, shortly before the judgment by cognovit, and under these, all the property of the corporation was sold, leaving a surplus, which was paid by the sheriff to the ex-president under his judgment by cognovit. Subsequently, another creditor brought suit and recovered judgment, and filed his bill against the ex-president, praying that he be decreed liable to pay his judgment out of the surplus in his hands. — Held, (1) that the ex-president held the money so received in trust for all the creditors; (2) that they could not be reached by the latter judgment creditor for his own benefit, under the eighty-eighth and subsequent sections of the Chancery act; (3) that they could be reached by a receiver appointed for the benefit of all the creditors.</p> <p>4. Corporations are not liable to be proceeded against under the eighty eighth and subsequent sections of the Chancery act.</p>

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

Final hearing on bill, answers and proofs. The object of this bill is to permanently restrain what is .alleged to be a nuisance, namely, the pollution of a natural water-course.

<p>1. An ordinance changing the grade of a street was passed to enable complainant to construct a railroad bridge. Said ordinance was removed to the supreme court on certiorari by defendant landowners, and work under the ordinance was stopped. Pending the litigation it was agreed that the suit should be discontinued, that all parties should consent to said change of grade and that complainant should pay to defendants a certain sum, and an additional sum was to be deposited, to be paid to defendants if the ordinance was not set aside on any other writ of certiorari, or if, pending any certiorari, the road should be actually constructed at the grade established by said ordinance ; otherwise, the money deposited should be returned to complainant. Afterwards, and before the road was constructed, the ordinance was set aside on certiorari. After complainant had sued out a writ of error, an agreement was made whereby the grade fixed by the ordinance, except immediately under the bridge, was changed, other alterations were made, and all litigation between the parties discontinued. — Held, that as the ordinance was set aside before the road was constructed, and as the road was constructed, not under the ordinance, but by virtue of such agreement, defendants were not entitled to the additional amount deposited with said trustee.</p> <p>2. The fact that defendants were damaged to the total amount fixed in the contract, and that complainant obtained the advantages for which the money was to be paid, did not entitle defendants to the fund under the contract.</p> <p>3. As said fund was not stated, in the contract, to be compensation for damages sustained by defendants, and as the contract provided that if any assessments were made against defendants for benefits, amounting to more than the award to them, complainant should pay the excess, and as complainant had agreed to make said change in grade and all improvements at its own expense, defendants are not entitled to claim said fund as damages.</p> <p>4. After said ordinance had been set aside, complainant, fearing that it would have no right to construct, under land belonging to defendants, a sewer which it had agreed with the city to construct, in order to drain the street under said bridge, and that substantial damages would be assessed for change of grade, proposed to defendants to pay the fund in controversy in satisfaction of all damages resulting from the change of grade, and to prevent their interference with the construction of said sewer. — Held, in a suit to determine the title to said fund under the original contract, that said proposition was inadmissible as evidence of any liability on the part of complainant.</p>

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

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

<p>1. A loan of money to a person upon his own credit, for the purpose of enabling him to contribute his share of the capital in a firm, is not a partnership debt.</p> <p>2. An insolvent firm cannot devote any of its assets to the payment of individual debts of its members.</p> <p>3. An insolvent firm made a chattel mortgage on all its property to a trustee, to sell the same and pay, first, three creditors of the individual members of the firm. On bill filed by firm creditors — Held, that this provision was void.</p> <p>4. The discharge of an arrested debtor under the provisions of the Insolvent Debtors’ act only confers immunity from any arrest on account of any debt provable under these proceedings; it does not bar a subsequent suit for such a debt.</p> <p>5. A defendant who sets up certain facts in his answer and states that the consequence of such facts is to exhibit a particular defence, cannot, on final hearing, use the same facts to support a different ground of defence, to which the attention of the complainant is not called.</p>

This bill is filed to compel the defendants to account. Bellingham engaged with the defendants to make sole and heel taps for the latter, and he was to receive a certain price per hundred each. He worked with his own servants, in his own buildings, with his own machinery. He commenced in September, 1889, and continued four years and four months. His business habit was to take an account of the week’s work on each Saturday, and deliver it to the defendants.

On petition and order to show cause why the defendants shall not be adjudged to be in contempt for non-obedience to the decree of this court herein, and punished. The complainant, by condemnation, has acquired the right to cross a car yard of the defendants, nearly at right angles to twenty-one railroad tracks laid therein, by means of an arched masonry passageway beneath the surface of the yard.

On exceptions to master’s report in foreclosure. On the 13th of May, 1892, Catharine Y. Furey, a dealer in liquors, trading under the name of John Furey & Company, was largely indebted to the complainants, and, desiring them to give her credit in excess of $25,000, in pursuance of an arrangement with them procured John E. Hurley, with his wife, to mortgage property in the city of Paterson, which belonged to Hurley, to the complainant George W. Kidd, “ for the purpose,” using…

Final hearing on pleadings and proofs. The suit was commenced by a creditors’ bill framed under the eighty-eighth and subsequent sections of the Chancery act (Rev. p. 120). An order for discovery was made therein and the defendants were examined, and subsequently a new bill was filed, based, in part, upon the result of the said discovery. The complainant is a judgment creditor of the defendants Simon, Jacob and Abraham August.

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

Bill of interpleader. Heard on pleadings and proofs upon issue joined between the defendants. This is a bill of interpleader.

<p>1. It is the duty of the owner of a going business, whose value consists in part of good will, who proposes to sell an interest therein to an incoming partner, to make a full, fair and complete disclosure to the purchaser of all matters tending to affect the value of the good will.</p> <p>2. In such case if the success of the business depends upon the personal knowledge and business capacity of the vendor, and his health is such as to render it doubtful if he will be able to give personal attention to the business, it is his duty to disclose his disability to the incoming partner before entering into a partnership agreement by which he covenants to give such personal attention.</p> <p>3. If, after entering into such partnership articles and before the partnership actually commences, the vendor finds there is danger that his health will not permit him to continue in the business and give it his personal attention, he should, on the request of the incoming partner and in the absence of any change of circumstances working an equitable estoppel, consent to a rescission.</p>

<p>1. A marriage between parties, one of whom has a lawful husband or wife living, is absolutely void at the common law for all purposes.</p> <p>2. There can be, strictly speaking, no deoreé of divorce dissolving such a marriage; the proper decree in such case is one declaring the marriage null and void ab initio.</p> <p>'3. Such a decree does not alter the relations of the parties, and its value consists in its effect by way of estoppel, and in bastardizing the issue of the parties to it. :</p> <p>4. A court of equity has original.jurisdiction of an action to declare such marriage void, without the aid of any statute.</p> <p>5. A statute of this state giving jurisdiction to the court of chancery over-actions of divorce, does not, so far as regards actions for nullity, alter the intrinsic character of the action, or compel this court, in dealing with it, to act upon' principles other than those governing it in ordinary suits.</p> <p>6. A man who, being consciously under disability to marry by reason of having a lawful wife living, falsely represents himself to be competent to marry, and thereby induces an innocent woman to go through the ceremony of marriage with him, cannot maintain against her an action of nullity in a court of equity.</p> <p>7. The contrary rule which prevails in the English ecclesiastical court does not govern this court.</p> <p>8. In a suit for nullity by reason of precontract with a living person, strict proof is required of such prior contract.</p> <p>9. An exemplified copy of a paper purporting to be a certificate of a marriage ceremony, signed by a person without any designation of character, and without proof of its genuineness, on file in the office of a clerk of a court of another state of the-Union, without proof of the laws of that state, is not sufficient proof of such'marriage ceremony to sustain a decree of nullity by reason of it.</p>

Upon petition for injunction. The facts of this case are the following: Prior to the 21st day of November, 1886, the defendants Mary Jane Wilson and her brother, Henry R. Wilson, were the owners, as tenants in common, of a tract of land in the county of Atlantic, containing about three hundred and twenty acres, the said Mary Jane Wilson being the owner of an equal undivided two-thirds part, and the said Henry R. Wilson being the owner of an equal undivided one-third part…

On demurrer. The case as made by the bill, and admitted by the demurrer, is as follows: Richard Owen recovered judgment against the complainant in the city court of New York city, on the 13th of June, 1891, for $1,735.28 damages, and $182.07 costs. Richard died intestate in 1892, and in January, 1893, letters of administration upon his estate were granted by the surrogate’s court of New York to the defendant John Owen.

<p>On information &e.</p>

Ou bill for injunction. This bill is filed to enjoin the defendants from closing a window in a building belonging to the complainants. The complainants own a lot of land in Salem, on the corner of Market street and West Broadway. On it is a building known as the Starr building, entirely covering the surface of the lot. In dimensions the building is fifteen feet in width on Market street, and runs back the same width along West Broadway, a distance of fifty-four feet.

On bill and demurrer. The bill states that the complainant is a township authorized to construct sewers and to contract with other municipalities for the right to connect its sewers with theirs; that it made a contract with the city of Orange for the building of a main outlet sewer, through which, by said contract, it is entitled to discharge sewage and to prohibit any other municipality, except the city of Orange and the township of Montclair, from doing so.

On bill and demurrer. The bill in this case sets out that the township of Bloomfield entered into a contract with the Orange Water Company to buy water for city purposes, to be taken from the mains and hydrants of said company already located in the streets of said township.

On the 9th day of October, 1895, Julian Gerard Buckley, in behalf of his sister, Mary Kemble Slack, presented a petition entitled “In Chancery of New Jersey,” to John T. Bird, Esq., one of the vice-chancellors of the state. The petition is addressed “To His Honor John T. Bird, Vice-Chancellor of the State of New Jersey,” and on the day of its presentation was filed in the chancery clerk’s office.

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

<p>In insolvency. On claim of Frank P. Bailey, an employe, for preferential payment of his claim.</p>

<p>1. No trust can be implied in favor of the grantor of land by deed operating under the statute of uses which contains the usual declaration of uses in favor of the grantee.</p> <p>2. In the absence of fraud in the procuration of a deed of conveyance of land, fraud cannot be predicated of a mere refusal of a grantee to perform a parol promise, not proven by any writing, to hold the same in trust for the grantor.</p> <p>3. Circumstances stated sufficient to warrant the court in setting aside an absolute deed intended to be made in trust.</p>

On bill for partition. This bill is filed to obtain a partition of a tract of land, and incidentally to have adjusted the respective liens claimed by certain of the owners in common. Held: absolutely. Haney also imposed certain additional charges upon the undivided half which she devised to Forbes. In the first place, she bequeathed to Daniel Coghlan, who was one of her executors with Forbes, the sura of $3,000, to be invested for Julia Magee, her daughter.

<p>1. A bequest to a wife of “ the sum of eight thousand dollars invested in stocks, the interest to be paid to her during her life,” is a demonstrative legacy.</p> <p>2. This' legacy is not a charge upon the real estate, either by reason of an equitable conversion of the realty, inasmuch as the order to sell the real estate is for the purpose of distribution and not to pay legacies; or by a gift of the residue of the real and personal property in one mass, inasmuch as the last clause of the will contains a gift of all the proceeds of the sale of the real estate.</p>

<p>A tenant by the curtesy, having let to a tenant a store which his deceased wife had owned, died during the term. At his death there was found a recorded deed of said store, purporting to have been made to him by the heiress-at-law of his wife, of which deed the lessee of the store was informed, and thereupon paid his rent to the agent of the heirs of the lessor, who distributed it to the numerous heirs, who were living in different parts of the United States. After the death of the lessor, the heiress-at-law was apprised of the existence of the deed purporting to have been made by her, but failed to inform the lessee that she repudiated the deed and claimed to be the owner of the store. Sixteen months after the lessor’s death she began an action of ejectment against the lessee, claiming that the said deed was a nullity, and she recovered judgment. — Held, that the heiress will be restrained from compelling a repayment of the rent due from the time of the lessor’s death to the time of beginning the action for ejectment, on the ground that she had estopped herself by her silence, when she should, under the circumstances, have warned the tenant of the invalidity of the deed.</p>

<p>Defendant, who was doing business under the name of Newark Coal Company (unincorporated), on the formation of a corporation by that name, transferred to it his business and the good will thereof, and was taken by the corporation into its employ as an officer for four years. — Held, that the defendant, on the dissolution of his connection with the corporation and engaging in a rival business, must not be enjoined from advertising himself as formerly connected with such corporation.</p>

<p>1. Where the right to enforce building restrictions is of a purely equitable nature, a court of equity -will not enforce them by mandatory injunction, unless prompt application is made by the persons entitled to enforce the restrictions.</p> <p>2. Persons who are owners of the land entitled to the'benefit of the restrictions at the time of the violation, are entitled to apply for relief, and their grantees are barred by their acquiescence in the violation or delay in applying for relief.</p> <p>3. No relief against such violations can be granted upon a bill which discloses such acquiescence and delay, continuing for several years, on the part of complainant’s grantors and of complainant himself, and entirely unexplained.</p>

<p>On appeal from a decree of the Union county orphans court, upon an accounting of Walter L. Hetfield, as executor of the will of Antoine Debaud, deceased.</p>

<p>On appeal from the decree of the Mercer county orphans court, upon the accounting of the respondent executrix.</p> <p>John F. Klein, late of Trenton, in this state, died on the 21st of August, 1882, testate, leaving him surviving his widow, Kate J. Klein, and four children — two by a former wife, to wit, Mary Ida Ivory and William F. Klein, the latter of whom died on the 12th of April, 1892, and two by his widow, Kate J. Klein, to wit, Gertrude Klein, at his death nineteen years of age, and Marguerite Klein, then eleven years of age. The last-named child became twenty-one years of age on the 21st of April, 1892.</p> <p>The decedent left three parcels of property, all of which were in the city of Trenton, to wit, his residence on Hanover street, with its furniture, business property on State street, and other business property on Greene street. His residence was encumbered by a mortgage for $3,000, held by one Deats; the State street property was encumbered by two mortgages, one for $5,000, held by one Wilson, arid the other for $3,000, held by one Green, and the Greene street property was encumbered by a mortgage for $10,000, held by one Wilkinson. He did not leave any personal estate beyond his household furniture in his dwelling on Hanover street.</p> <p>By his will, dated on the 4th of September, 1875, he constituted his wife the executrix thereof, and gave and devised to her, in lieu of dower, his dwelling on Hanover street, with its furniture, in fee. By the same instrument, he provided that the State street property should be sold by the executrix, as soon as conveniently might be, at public sale, to the highest bidder, “ and,” following the language of the will,</p> <p>“ that from the proceeds of said sale, all my debts, including all mortgages which may exist on any and every property I may own, be paid off and extinguished ; debts, other than mortgages on other properties, to be paid first, and other mortgages afterwards, if sufficient balance remains for that purpose. If at the time of such sale any of my mortgages are not yet due, and the holder of said mortgage or mortgages refuses to’receive the payment thereof, then and in such case, if such balance remain a sum sufficient to pay the probable indebtedness when the same falls due, it shall be retained by my executrix and invested subject to such payment. The balance of the proceeds of said sale, if any, remaining after the payment of all my debts, book accounts, mortgages and provisions for payment of mortgages as aforesaid, I give and bequeath to my son, William P. Klein, and my daughter, Mary Ida Ivory, to be equally divided between them.”</p> <p>He then devised the Greene street property to his wife in trust, using this language:</p> <p>“ In trust to the following uses and purposes, that is to say, upon trust to permit and suffer, authorize and empower my wife, Kate J. Klein, to have, take and receive the rents, issues and profits thereof, therefrom to pay for the repairs required on said property and for all public taxes and assessments imposed thereon, and further to meet and pay for the general support and education of herself and our children until the youngest surviving child has arrived at the age of twenty-one years, when and at which time, or as soon thereafter as conveniently may be, to sell the said property at public auction to the highest bidder, and I hereby and herein authorize and empower my executrix to make such sale, and to divide the proceeds thereof among all my children in such manner and in such parts that, by crediting my said two children before named, William P. Klein and Mary Ida Ivory, with the amount, if any, received by them from the proceeds of the sale of the State street property as directed in Item No. 1, all my children shall receive an equal division and share of the total proceeds of the sales of said two properties (the State street and the Greene street-properties aforesaid).”</p> <p>He further provided for a trust of a $3,400 mortgage held by him when the will was made, but not existing at his death, in his widow for her benefit for life, the principal at her death to be disposed of by her appointment in her will, and that if his son William should die before distribution should be due to him under the will, that his portion should be divided among the children of the testator surviving at that time. The residue of his estate was devised and bequeated to his wife.</p> <p>The executrix proved the will on the 1st of September, 1882, and letters testamentary were issued to her. She then took possession of the three properties, occupying the Hanover street property and receiving the rents of the State and Greene streets properties. From the rent of the State street propérty she paid debts of her husband and interest on the four mortgages mentioned. On the 1st of April, 1884, she sold the State street property for $20,000, and on the 17th of the same month paid to Mr. Wilson $5,138.83, and to Mr. Green $3,118.75, in satisfaction of their respective mortgages. These payments, and the payment of the remainder of her husband’s unsecured debts, left in her hands from the proceeds of the State street property $5,843.37, out of which, on May 10th, 1884, she paid $3,183.32 in satisfaction of the mortgage on the Hanover street property, the fee of which was devised to her. The remainder of the $5,843.37 she retained and expended in the payment of interest from time to time on the $10,000 mortgage on the Greene street property.</p> <p>In’ July, 1892, after her youngest child became of age, she sold the Greene street property, subject to the mortgage on it, and received therefrom, as the proceeds of sale, $15,000, out of which she has been allowed credit for further payment of interest on the $10,000 mortgage.</p> <p>The income from the Greene street property was used by her in the payment of taxes assessed against that property, for repairs to it and for the support of herself and the support and education of her two children. It was sufficient to have paid for taxes, repairs, interest on the $10,000 mortgage and something towards the support of the widow and her children.</p> <p>Upon the accounting of the executrix, the orphans court, by its decree, apportioned the $5,843.37, balance of proceeds from the State street property, between the Hanover street and Greene street mortgages, so that three-thirteenths, or $1,348.49 of that sum, was allowed to the executrix because of the Hanover street mortgage, and ten-thirteenths, or $4,494.88, remained for her to account for. No objection is made to the decree in this respect. The appellant’s sole objection is because the court allowed the executrix some $5,400 interest upon the mortgage on the Greene street property out of the moneys which were realized from the proceeds of the sale of the State street and Greene street properties, her contention being that the interest upon that mortgage should have'been wholly paid from the income of the Greene street property, upon the ground that it was the duty of the life tenants to pay that interest, which is not a charge against the remaindermen, as in effect it is made by the decree of the’ orphans court.</p>

<p>1. A stipulation in a deed inter partes, that the grantee will assume and pay a debt secured by a mortgage on the premises, for the payment of which the grantor is personally liable, is a contract by the grantee with the grantor for the indemnity of the latter, and the obligation of the grantee to pay the</p> <p>mortgage debt enures in equity for the benefit of the mortgagee, and he may enforce it against the grantee to the extent of the unpaid part of the .mortgage debt, after the proceeds of the mortgaged estate have been applied thereon.</p> <p>2. The remedy of the mortgagee in equity against t]he grantee for the mortgage debt so assumed is not affected by the acts of 1880 and 1881. Mev. Swp. pp. 489, 490.</p> <p>3. In granting relief on the ground of mistake, there is a distinction between the rescission and the reformation of a written instrument. A court of equity may rescind a written contract for a mistake which is unilateral; that is, a mistake on the part of one of the parties only. In such a case, the whole contract is set aside and the parties restored to their original position. There can be no rescission unless the parties can be restored to their original position.</p> <p>4. But in the case of the reformation of a contract or deed by altering or expunging some of the terms contained in it on the ground of mistake, the part improperly introduced into it will be altered or expunged and the instrument will stand as reformed. To warrant reformation in the absence of fraud or imposition, there must be a mutual mistake; that is, a mistake shared by both parties.</p> <p>5. To justify the reformation of a deed delivered, accepted and acted upon, on the ground that it did not correctly express the agreement made by the parties, the proof must be clear and convincing and upon testimony that is unexceptionable, both with regard to the agreement actually made by the parties and the mutuality of the mistake through which a different agreement was put in the'deed. Until a mistake has been established by such fofce of proof as leaves no rational doubt of the fact, no change in the writing sought to be reformed is entitled to be called a correction.</p> <p>6. On a bill filed by a mortgagee to enforce the assumption of the mortgage debt by the grantee of the mortgagor, the defence that the assumption clause was improperly inserted in the deed should be made by a cross-bill, and the grantor, or his personal representatives in case of his death, should be made parties to such cross-bill.</p>

<p>On appeal from a decree advised by Vice-Chancellor Green, whose opinion is reported in Tynan v. Warren, 8 JDich. Ch. Rep. 313.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney.</p>

<p>On appeal from a decree, in Bechtold v. Read et al, advised by Vice-Chancellor Bird.</p>

<p>1. A multifarious bill may, at an early stage of the cause, be dismissed by the court of its own motion.</p> <p>2. Except for some special reason, the court of chancery will not interfere with the ordinary jurisdiction of the probate courts in the settlement of the accounts of executors and administrators.</p> <p>S. A bill for an account will not be retained when it shows on its face that the complainant is informed of all the items, of the account, and no relief is prayed with reference to the balance.</p> <p>4. A creditor of a deceased person cannot maintain a bill to set aside as fraudulent a conveyance of the decedent’s lands, when the bill shows that the personal property of the deceased is ample to.pay his debts.</p> <p>5. A creditor at large of a deceased person, who has not presented his claim to the personal representative under the statute, cannot maintain a bill in equity to set aside as fraudulent a conveyance of the decedent’s lands.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney.</p>

<p>1. Authority to sign an agreement for the sale of lands, binding on the principal under the statute of frauds, may be conferred upon an agent by parol.</p> <p>. 2. Such authority may be established by proof that it was expressly conferred, or by proof of circumstances from which it may be reasonably inferred.</p> <p>3. A signature to such an agreement made for another, without authority, may be by him adopted and ratified so as to be of the same force as if made by authority antecedently given, and such ratification may be inferred from circumstances. But knowledge that there was such an agreement signed for him is an essential prerequisite to proof of his ratification.</p> <p>4. A real estate agent or broker in whose hands an owner places lands for sale, or who is employed to sell lands, does not thereby acquire authority to bind his principal by signing an agreement of sale of such lands.</p> <p>5. The inference that such real estate agent or broker has been endowed by his principal with authority to bind him in a written agreement of sale cannot be drawn from circumstances entirely consistent with his employment as a mere agent and broker, nor without other circumstances clearly indicating the grant of such greater authority.</p>

<p>On appeal from a decree advised by Advisory Master Dickinson.</p>

<p>A bill in chancery for deficiency will not lie against a surviving original obligor, upon a bond secured by mortgage, with whom no other defendant is joined.</p>

<p>On appeal from a decree of the ordinary, whose opinion is reported in 8wain v. Edmwnds, 8 Dick. Ch. Rep. 11$.</p>

<p>On motion to strike out portions of the answer filed by the defendant Van Voorhis.</p> <p>The bill alleges that on the 19th of April, 1888, the complainant, then of Pittsburgh, Pennsylvania, constituted the two defendants his attorneys in fact under a duly-executed power of attorney in writing, a copy of which is annexed to the bill as Schedule A and made part of it. That writing gives power to the defendants to demand, recover and receive moneys, debts, merchandise and effects due, payable or coming or belonging to Archibald A. Hutchinson; to sell his goods, merchandise and effects; to purchase for his account goods, merchandise, specie and other commodities and sell them again for his benefit; to ship and transport goods and barter and sell them, when at their destination, upon his account; to insure his property; to accept bills of exchange or orders, make and endorse notes, bonds &c., and execute drafts, checks, recognizances and bonds in legal proceedings <&c. for his benefit; to grant, bargain, sell, exchange, assign or dispose of his bonds, mortgages, stocks and securities, executing in his name necessary instruments for that purpose; to purchase real estate, executing necessary contracts &o. touching the same; to mortgage his property; to settle and adjust his partnership accounts; to settle his disputes with others, submitting to arbitration when expedient; to substitute his securities for others; to compound for debts or demands owing to him; to execute releases, compromises, compositions &c.; to discharge debts due to him, to take possession of lands to which he should be entitled, to distrain for rent, to bring suits to enforce his rights, to confess judgments for him, to arbitrate and compromise suits, to receive securities impounded in legal proceedings, executing bonds of indemnity where necessary; “and generally to do and perform all matters and things, transact all business, make, execute and acknowledge all contracts, orders, deeds, writings, assurances and instruments” in and about his affairs, and substitute one or more attorneys under them.</p> <p>The bill also alleges that the complainant agreed- with the defendants that their compensation as his attorneys under the power should be $1,200 per annum, and also that on the 28th day of April, in the same year, the complainant left America and went- to Europe, where he remained until the 2d day of April, A. D. 1893, and that during his absence the defendant Van Voorhis acted under the power of attorney principally alone. It prays that the defendants may account as the agents of the complainant, and that payment of whatever balance may be found to be due to the complainant may be enforced in his behalf.</p> <p>The defendant Thomas B. Hutchinson, who is the brother of the complainant, has appeared in the suit by solicitors, but has not answered. The defendant Isaac S. Van Voorhis was served with subpoena at Atlantic City. Upon motion in his behalf, based upon the affidavit of his physician that he is now of unsound mind and incapable of managing his affairs, Barton B. Hutchinson was appointed his guardian ad litem in this suit, and in his behalf has filed the answer which is now objected to.</p> <p>The answer admits the making of the power of attorney referred to in the bill, and, at the same time, denies that any amount was agreed upon as the annual compensation of the attorneys, and, on the contrary, alleges that it was understood between Van Voorhis and the complainant that Van Voorhis was to be paid for his services whatever they should reasonably be worth. It further admits the absence of the complainant in Europe, and that Van Voorhis acted under the power of attorney, and, going further, it alleges that Van Voorhis had been the complainant’s lawyer and confidential adviser, and that Thomas B. Hutchinson was his brother; that it was designed that Van Voorhis should be the real agent and that the brother should be co-agent, for the purpose merely of observing and inspecting the acts of Van Voorhis and keeping complainant advised with respect to them; also, that Van Voorhis acted alone in whatever he did, but with the full knowledge and approval of Thomas B. Hutchinson. It further alleges that while complainant was absent, Van Voorhis, from time to time, sent him itemized accounts in writing, which the complainant received as satisfactory and had every opportunity through his brother to verify. It then proceeds in this language:</p> <p>“ That at a time just preceding the said agency this complainant was so overwhelmed with litigation and other matters requiring legal services, as herein below more particularly specified, and was so alarmed by the danger therefrom to his property and character that he was unwilling to face the responsibility of his acts before the courts of Pennsylvania, and felt obliged to find some person to whom to entrust his property and the management thereof, and after finding such person to at once leave for Europe; and it was to this end that he appealed to this defendant, his attorney and trusted friend, to not only manage his law business, but to take charge of his property and other business as his attorney in fact; that it was to this end also that he prevailed upon this defendant to protect him and that he executed the instrument in the bill of complaint set forth; that this defendant was so conscious of the said dangers to the reputation and property of his friend, the complainant, and was driven to such extremities and incessant labor, worry and anxiety to find legitimate means of protecting him, and the burden of obligations assumed thereby was so greatly increased by the said agency, that after successfully defending him, the said complainant, in the courts in most of the matters herein below specified and in all of those which so endangered complainant’s character and fortune, and after accumulating the profits hereinafter specified for the complainant, and being of a very sympathetic nature, the entire burden proved too great for his strength of body and mind.”</p> <p>It then proceeds to allege that in March, 1893, the defendant Van Voorhis was removed to a hospital for treatment and that, in 1895, his mind became permanently deranged and he became incapable of understanding any business or of making an account of the affairs of his agency and of giving instructions to that end. Also, that the complainant, by Thomas B. Hutchinson, had access to his books and papers and took some of them away, so that enough of them are not left to enable the defendant Van Voorhis to render an account. Also, that on the 6th of March, 1893, Van Voorhis and the complainant stated an account between them, which shows Van Voorhis to be indebted to the complainant in the sum of $21,166.75, which, by credits, is reduced to $10,727, which balance was agreed by them to be subject “to future litigation and adjustment,” having reference to the claim of Van Voorhis for compensation. Also, that out of the balance the defendant is justly entitled to $6,300 for his service under the power of attorney. The answer then continues as follows:</p> <p>“ That since the said 6th day of March, 1893, while this defendant remained (with the exception of a few months) within the jurisdiction of the courts of Pennsylvania, and while the witnesses necessary to his more complete defence were subject to the jurisdiction of said courts, and while records and data were complete, the complainant did not deem it wise to enter into any litigation in said state with this defendant concerning said amount in difference; and that when in the greatest extremities of bodily and mental illness this defendant was, under the instructions of his physician, removed to Atlantic City, in this state, for medical reasons and purposes, the complainant procured the service of the writ in this cause upon said defendant.</p> <p>“The complainant, for the reasons above set forth, is not entitled to any further accounting, and the simulation of such right at a time when this defendant is, in the various ways above stated, deprived of all chances or possibility of such accounting, is for the purpose of embarrassing him and preventing him from enforcing his claim against the complainant for amount still due him for services rendered as attorney in fact and attorney-at-law as aforesaid. And for the purpose of this complaint in simulating a right to an accounting of matters of which the complainant is already fully informed, is to force the friends of this defendant to procure a waiver of the just and reasonable claims of this defendant in order to avoid such disturbance of this defendant in his enfeebled condition as may result fatally to him.”</p> <p>The answer asks that the defendant may have the same benefit from the account stated and his inability to account by reason of his loss of books and papers and his mental condition, as if he had pleaded these matters in defence. It then proceeds, by way of cross-bill, to first allege that the complainant is still indebted to the defendant in the sum of $6,300 for services under the power of attorney, and then to specify services as attorney-at-law, meriting enough consideration, according to his claim, to absorb the remainder of the balance of the $10,727, shown upon the alleged account stated, and to pray that such compensation as he merits for all such services as attorney in law and attorney in fact may be allowed and paid to him by the complainant.</p> <p>The complainant now moves to strike out the portions of the answer which are above quoted as scandalous and impertinent, and to strike out so much of the answer as is by way of cross-bill, upon three grounds — -first, because it “ is not necessary to the defence of the said defendant; ” second, because “ the matters and things therein stated are alleged by the defendant and sought to be used by him as a means of obtaining relief against the complainant in respect to a cause or causes of action distinct from, and wholly unconnected with, the complainant’s cause of action; ” and third, because “ the matters and things in said answer, in the nature of a cross-bill alleged, afford no ground for equitable relief.”</p>

<p>On petition of the Bethlehem Iron Company, a non-resident defendant, for leave to appear and plead, answer or demur to the complainant’s bill and for a stay of proceedings under the execution issued upon final decree heretofore made herein until further order.</p> <p>The suit is for the foreclosure of a mortgage on land part of which was claimed by one Ryon, who mortgaged a portion of that part, with other land owned by him, to the Bethlehem Iron Company. Ryon and the Bethlehem Iron Company were both made defendants in order, among other things, that their claims upon part of the lands mortgaged to the complainant’s intestate might be adjudged to be without validity. The bill was filed in April, 1893, and promptly thereafter process of subpoena was issued against the defendants. The Bethlehem Iron Company was a corporation of Pennsylvania, having its principal office in Bethlehem, in that state, and not being found within this state, an order of publication was made against it pursuant to the provisions of the eighteenth section of the Chancery act, as amended in 1893, a notice of which, in the form prescribed by the fifty-eighth rule of this court, was published and mailed as required by law. Rev. p. 106 § 18 ; P. L. of 1898 p. 199. That notice was addressed to the Bethlehem Iron Company, and contained this paragraph:</p> <p>“And you, Bethlehem Iron Company, are made defendant because you claim to have an encumbrance upon said lands, or some part thereof, given to you by John T. Ryon, and in the said bill it is alleged that said John T. Ryon claims to own said lands through misapprehension and by mistake of facts, whereas in fact he never had any title to said lands or any part thereof; and it is alleged in said bill that the mortgage to said Bethlehem Iron Company is not, and never has been, an encumbrance on said land or any part thereof.”</p> <p>The Bethlehem Iron Company failed to appear or answer and a decree pro confesso was in due course, in July, 1893, taken against it. Ryon answered, asserting his title, and thereupon issue was joined, which, after having been litigated at considerable length and expense, was, in June, 1895, decided adversely to Ryon, and thereupon a final decree, dated in June, 1895, was entered against both Ryon and the Bethlehem Iron Company. From that decree Ryon appealed, but his appeal was dismissed, for want of prosecution, in June, 1896. Upon the record being remitted from the court of errors and appeals to the court of chancery, execution for the sale of the mortgaged'premises was issued, and pending advertisement of sale under it, on the 11th of August, 1896, the Bethlehem Iron Company presented its present petition, upon the filing of which the sale advertised was ordered to be adjourned from week to week and the complainant was called upon to show cause why the prayer of the petition should not be granted.</p>

<p>1. Where the object of a suit in equity is to secure the specific performance of an alleged parol contract to leave the estate of a foster-parent to the child the rule is that the agreement must be clearly established by satisfactory proofs. Such proofs do not exist in uncertain and unnecessary inferences.</p> <p>2. Where parties to a contract have put it in writing, and that writing, upon its face, purports to contain the whole agreement between them, it will be the only evidence of the contract as concluded, and no parol proof of what was said and done during the negotiations which led to it will be admitted to alter or contradict it or to supply additional terms.</p> <p>3. In such case proof will not be received to show a collateral promise between the parties at the negotiations, unless that promise relates to-a subject distinct from that to which the written contract applies.</p>

<p>A, by his will, devised certain of his lands to his son B, and certain other of his lands to his son C, and charged his sons, respectively, with the payment of moneys to his wife and daughters. The will contained this provision : “ If they [referring to the sons] should die, or either of them, without child or children, * '* * the real estate given to them or either of them shall go to my other children, share and share alike.” — Held, (1) that the sons each took a conditional fee in his holding, with a limitation over to the testator’s “other children” by way of executory devise; (2) that among the “other children” of the testator intended was included one of the sons who died leaving- a child; (3) that the children of the testator who survived him took contingent interests in severalty, which were transmissible by descent and devisable by will.</p>

<p>1. A decree fox- alimony cannot be made against a defendant who is not served with process for appearance, does not appear in the cause, or has no property within control of the court.</p> <p>2. Alimony is not an independent claim or right. It is incidental to a bill for divorce or other relief between husband and wife.</p> <p>3. Whether it can be had after a final decree in the divorce case which is silent as to it, except through amendment of the decree, qucere.</p> <p>4. While this court will not vary or alter an enrolled decree in a material point without a bill of review or a rehearing, it will, upon petition, amend its enrolled decree when the amendment is necessary to give full expression to its judgment and is matter which would without doubt have been incoi'porated in the decree when made if attention had been called to it.</p>

This is a bill to foreclose a mortgage upon land, dated the 12th of November, 1894, to secure $5,000 in one year, with interest semi-annually, with a clause providing for the maturity ■ of the principal in case the interest was not paid. Default .was made in the payment of the first six months’ interest, and this bill was filed on the 18th of July, 1895.

<p>Final hearing on pleadings and proofs taken before a master.</p>

<p>1. A vendor of chattels, who delivers the same and takes a note with security for the price, has no equity in the nature of a vendor’s lien as against the holder of a chattel mortgage previously given by the vendee containing a clause covering after-acquired property which reaches the chattels in question.</p> <p>2. It is competent and proper for a court of equity, at the suit of a mortgagee of chattels, brought to establish his lien upon after-acquired chattels, to add to a decree establishing such lien a remedy for compensation for deterioration in the value of the chattels pending litigation, or for the value of such as have been removed and converted by the defendant.</p>

<p>On petition of Cornelius E. Van Dervoort to be paid a certain amount for rent out of the fund in court.</p>

<p>On filial hearing'on pleadings and proofs.</p>

<p>On final hearing.</p>

On bill &c. The principal question involved in this ease is whether fire insurance companies, who have paid to a first mortgagee the loss to the mortgaged property occasioned by fire, are entitled to be subrogated therefor to the rights of the first mortgagee, or whether the second mortgagee is entitled to have the payment credited or applied as a payment on the first mortgage.

<p>1. Partnership real estate is regarded as personalty so far as it is required to pay firm debts.</p> <p>2. As a general rule there can be no partition of firm realty so long as there are firm debts outstanding. This rule is to secure the right of each partner to have firm property applied to the payment of firm debts, in order that he may be discharged from personal liability for them; therefore, if it appears that the realty will not be called upon to pay firm debts, a partition of the same may be decreed.</p> <p>3. Upon the dissolution of a partnership,'the assets are applicable to the payment — -first, of firm debts due to non-partners; second; of advances made to the firm by partners; third, of capital contributed by each partner. The residue is divisible as profits equally between the partners, unless a different method of division is stipulated for.</p> <p>4. When, by agreement, each partner had the privilege of leaving in the business of the firm, as contributions of capital, all or a part of his share of the profits set apart to him at the end of each year, then, upon dissolution, such portions of profits undrawn will be payable as capital.</p> <p>. 5. When, upon dissolution, the partners agree upon a valuation of the firm assets at a sum not in excess of the entire amount of the capital which has been contributed, and the personal property is turned over to a new firm upon the basis of such valuation, and the real estate is retained by the members of the old firm, their respective interests in the real estate will be in proportion to their contributions of capital.</p>

<p>On final hearing.</p>

<p>1. When real estate is conveyed, to a wife, hut is paid for by her husband, a settlement and not a resulting trust will be presumed; but such presumption is rebuttable.</p> <p>2. A promise to devise property, made for valuable consideration, will be enforced; and if the promisor attempts to violate his promise during his life, equity will at once, upon the principle of quia limet. impress upon the property a liability to answer the promise.</p>

<p>A testator in Ms will provided as follows: “I give, devise and bequeath all of my property, both real and personal, to my six children, as follows, that is to say, after the settlement and payment of all my just debts, then the residue of my estate, both real and personal, to be gathered into one general fund and divided into six equal parts, as follows: To my six children, * * * each of them to receive a one-sixth share, which I give to them and to their heirs forever-.” — Held, that an implied power to sell testator’s real estate was not given to the executor by this clause.</p>

On final hearing. On October 20th, 1847, the Mutual Benefit Life Insurance Company issued to Alexander Shiras a policy of insurance containing the following provision: “Tliis policy of .insurance witnesseth that the Mutual Benefit Life Insurance Company in consideration of fifty-two dollars and eighty cents to them in hand paid by Alexander Shiras, and of the annual premium of fifty-two dollars and eighty cents to be paid on or before the twentieth day of October in every…

<p>On final hearing.</p>

<p>1. On application to hold a party for contempt, any facts existing when the application is made which would support a motion to release from custody, ought to he shown in answer to the application.</p> <p>2. Where the decree only directs the payment of money, it is a sufficient answer to an application to hold the defendant for contempt for non-performanee, to show that he is, in good faith, unable to perform the command of the decree.</p> <p>3. A final decree solely for payment of money declared to be due on contract, will not be enforced by attachment for contempt, unless special equities or fraudulent conduct requiring the use of this remedy be shown to exist.</p>

On bill, answer and proofs. The complainant, on the 8th day of January, 1886, received a mortgage, made to her by one Elizabeth Fabian, conditioned to secure the payment of the mortgagor’s bond for $300, which mortgage was recorded January 9th, 1886.

<p>On appeal from a decree of the Essex county orphans court, which, upon proof, in solemn form {per testes), of a paper purporting to be the last will of August Meis, affirmed the prior admission of that paper to probate as such will by the surrogate of Essex county.</p>

James Carey, while residing with his wife in Passaic county, on the 28th of April, 1892, died testate. By his will, which was dated three days before his death, he directed his executors to pay his debts and funeral expenses, gave to two grandchildren each $50, devised and bequeathed the remainder of his estate, real and personal, to his eight children in equal shares, and appointed executors with power to sell his real estate.

Howard Lake as administrator pending contest of the will of George A. Rea, deceased.

Railroad Co. v. Pennsylvania Railroad Co., 9 Dick. Gh. Rep. 167. The respondent, by condemnation, acquired the right to cross the car yard of the appellant, by means of a subterranean passageway.

<p>On appeal from, a decree advised by Advisory Master Isaac S. Taylor.</p>

<p>When a party is committed by an order in equity for the non-payment of alimony, or fine and costs, the amounts must be specified in the commitment.</p>

Oil appeal from an order of the chancellor striking out the cross-bill of the defendant, Alfred Mills. Opinion reported in Mutual Benefit Life Insurance Co. v. Grace Church, 8 Dick. Ch. Rep. J/L8.

<p>Where the stock of a cemetery company is almost without any market value, its exchange'for an interest in land that may prevent disastrous competition, is not so improvident as to shock the conscience and lead, in equity, to an invalidation of the' sale.</p>

The bill of complaint in this case is filed by Anna M. Forrest, administratrix of Samuel Forrest, deceased, and Charles Borcherling, receiver of the goods and chattels, rights, credits, property and effects of Rodman M. Price, deceased, against Rodman M. Price and others, the children of the said Rodman M. Price, deceased, as defendants.

<p>When a party comes into the court of chancery to obtain satisfaction of a judgment, he must present himself under some head of equity jurisdiction; he must show that the debtor has made some fraudulent disposition of his property or that the case stands affected with some trust collusion or injustice against which it is the province of the court to give relief.</p>

By her answer she admits the desertion and justifies it on the ground of extreme cruelty, and, by her cross-bill, asks for a decree of divorce from bed and board, with a provision for her separate support and maintenance on the same ground.

<p>On appeal from a decree advised by Yice-Chancellor Emery, whose opinion is reported in Ashhurst v. Potter, 8 Dick. Ch. Pep. 608.</p>

<p>On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in Carr v. Hertz, 9 Rich. Ch. Rep. 127.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Lehigh Valley Terminal Raihoay Co. v. Came, 9 JDiolc. Ch. Rep. 84-</p>

<p>On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in Bannister v. Miller, 9 JDieh. Ch. Rep. 121.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Sayre v. Coyne, 33 Atl. Rep. 300.</p>

On January 1st, 1895, John H. Patterson, the complainant, contracted to convey to Thomas B. Madden, the defendant, by deed of general warranty, free from encumbrances, a certain tract of land in Monmouth county. Madden agreed to pay, upon delivery of a deed for the said property, the sum of $4,000.