Volume 56 — New Jersey Equity Reports

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

<p>1. That property sold on execution for only §6,200, when worth from §9,000 to §15,000, is not of itself ground for setting aside a sale.</p> <p>2. Execution sale of land described in two parcels will not be set aside because the property was sold as a whole, there having been no preparation or request of the sheriff for sale by the parcel.</p> <p>3. Execution sale will be set aside at suit of execution debtor and of a judgment debtor not protected by the sale, though induced to believe it would be; two persons having dissuaded others from bidding and one of them having bid it off under an arrangement that he should get it as cheap as possible and the other (who, before such arrangement, had intended to bid) should give him an advance of §700 on the purchase price, which he did, and it having sold for §6,200 when worth from §9,000 to §15,000.</p>

<p>1. Upon the facts established in this case — Held, that the lease from the complainants to the defendants did not include the yard in the rear of the restaurant building, but covered only the right of the use of the yard for light and air.</p> <p>2. The lessee, rented from a third person the lot next adjoining, and to the building on it added a brick extension in the rear, the wall of which was built up to the line. In this wall were left places for a window and door opening on the yard, the intention being to open a door from the rear of the restaurant. The owner of the restaurant thereupon closed the openings left in the third person’s wall by building up to the line on his side a brick wall twelve inches thick. — Held, that the rights of the lessee in the third lot were no greater than those of its owner, and the owner of the restaurant lot was justified in so closing the openings.</p> <p>3. A lessee in possession under a lease for five years commits waste when, without the permission of the lessor, he partially destroys a party wall by cutting out an opening for a door to connect with adjoining premises, though done with the permission of the.other joint owner of the wall.</p> <p>4. The test in such a case is not alone whether a material injury is done to the building, but whether it is altered in a material manner and to an extent beyond what is fairly implied from the terms of the original contract of letting.</p> <p>5. A person owning two adjoining and connecting buildings, in one of which he kept a saloon, let the other for a restaurant, on the express condition that no beverages should be sold there in competition with the saloon, and the lessee hired the premises adjoining the restaurant on the other side, and cut a door through the party wall to connect with the other premises, intending to open a saloon therein.— Held, that such action constituted waste, and that a mandatory injunction should be awarded to compel the lessee to close the door.</p>

Heard on bill, answer and proofs. The bill is in the ordinary form to foreclose a purchase-money mortgage given by the Powerville Felt Roofing Company (Limited) to the complainant, Tate, as part consideration of lands conveyed by Tate to the company.

<p>1. Under policies issued to employers and railroad companies, insuring them against damages with which they might be “legally charged” by reason of accident to employes, or to persons or property while being transported, the liability of the insurer arose on the happening of the injury, .and not at the time judgment was recovered against the insured for such injury.</p> <p>2. Policies issued to employers and railroad companies, insuring them against accidents to employes and to persons and property transported, provided that, if legal proceedings were taken against the insured to enforce a claim for damages, the insurance company should have the conduct and control of defending against the same, with the right to compromise and take appeals, the company assuming all costs and expenses. — Held, that under such contract, and independent of it, the reasonable charges of attorneys in defending actions against persons injured for accidents which might result in liability of the company were proper claims against it for allowance by a receiver, and this though the services were rendered under a retainer by the company before the receiver was appointed.</p>

Bill for dower. Heard on pleadings and proofs. The complainant, by her bill, asks to be endowed of all the real estate whereof her husband, John Cooper, late of the county of Camden, died seized. He died on the 18th of April, 1894, testate of a will executed on the 25th of October, 1893, with a codicil executed on the 21st of March, 1894. His estate consisted of both real and personal property of the value of nearly $100,000 each.

<p>1. A partition of land held by three brothers as tenants in common was .made by mutual release deeds. The deeds releasing the interest of one of the tenants in the land divided and set off to his two brothers, were not recorded within fifteen days, as required by Gen. Slat. p. 855 § 14, to make them valid against a subsequent judgment creditor of the transferer. — Held, that no equity arose in favor of the grantees as against the judgment creditor to have any further conveyance from the judgment debtor.</p> <p>2. A chain of title to land showing the title in a father, and a devise by him to three sons as tenants in common, and release deeds from two of the sons to the third, conveying their title in a divided one-third of the land, is not sufficient to charge a purchaser making an examination thereof with notice that the land has been partitioned among the three sons by mutual release deeds.</p> <p>3. Gen. Stat. p. 855 § 14 provides that ‘ ‘ every deed or conveyance of land which shall not be recorded within fifteen days after its execution and delivery shall be void and of no effect against a subsequent judgment creditor or bona fide purchaser, or mortgagee for a valuable consideration, not having notice thereof.” — Held, that whatever is sufficient to charge a purchaser with notice is sufficient to charge a judgment creditor.</p>

Heard on bill, answer and proofs. This bill is filed by a corporation named the Grand Lodge, Knights of Pythias of New Jersey, duly incorporated by act of the legislature, March 29th, 1871 (P. L. of 1871 p. 1027), against a subordinate lodge known as the Germania Lodge, No. 50, Knights of Pythias of New Jersey, and certain individuals, late members thereof.

<p>1. Printed copies of the constitution and laws of a beneficial order, in the hands of the secretary of the grand lodge of the state, sent for his guidance and use by the secretary of the Supreme Lodge of the World, are presumed to be genuine and accurate.</p> <p>2. Moneys received by the subordinate lodge of a beneficial order were held in. trust, to be used for lodge expenses and dues, for sick benefits, and for burial expenses of members. A majority of the members of a subordinate lodge disbanded and surrendered their lodge charter, first, however, making a present of the funds in the treasury to a sick benefit society which they had formed independently of the order. —Held, that such a disposition constituted a wrongful diversion of the funds.</p> <p>3. The provisions of the constitution and laws of a beneficial order concerning the disposition of the funds of subordinate lodges form a contract between the members of an incorporated subordinate lodge, so that the failure to dispose of its funds in accordance with those provisions is a breach of contract.</p> <p>4. The fact that a supreme lodge of a beneficial order has brokewits contract with the members of a subordinate lodge, by refusing to allow them to use the German language for their ritual and records, is no justification for the diversion by those members of the funds of the lodge held in trust for the purposes of the order.</p>

Heard on bill, answer, cross-bill and proofs. The complainant, Joseph C. Todd, is a creditor of the Butler Silk Manufacturing Company, an insolvent corporation, of which the defendant Meding is the receiver. The defendant Madeline A. Roe is also a creditor of the said corporation. A part of the assets has been divided and distributed by the receiver. A part remains to be divided and distributed.

On bill to foreclose. Heard on pleadings and proofs. The bill is in the ordinary form to foreclose a mortgage made by one Dunn to the complainant, Oliver M. Arkenburgh, and the defendant Eliza J. Arkenburgh, as executor and executrix of the last will of Robert H. Arkenburgh, deceased.

<p>1. Where a widow is entitled to an annuity under her husband’s will, her estate is entitled, on her death, to that part of the annuity for the year in which she died that had accrued at the time of her death, and not to the entire annuity for the year.</p> <p>2. Where a fund is held in trust for one person for life and for another in remainder, and the trustees realize a profit on real estate bought under foreclosure of a mortgage in which the fund is invested, the profits are to be apportioned between the life tenant and remainderman in the proportion which the principal represented by the investment bears to the interest which was in arrears, and also represented by the investment.</p> <p>3. Where a will contemplates an actual division of the estate by trustees and payment to the tenants in common in money, a power of sale is to be inferred.</p> <p>4. Testator gave certain property and furniture, &c., to his son-in-law and grandson in trust for his wife for life, and on her death he gave his son “ the right to purchase (not'for speculation) the said dwelling-house in E. street and a part or portion of the said lot upon which said house stands, for §8,000,” and provided that if his son should elect to purchase such property it should he vested in testator’s trustees, in trust for his son for life, and after his son’s death to his lawful heirs. He also directed that his son should have five years after the death of the widow to pay his two sisters each their third part of the §8,000, but the time when the son’s right to purchase was to be exercised was not mentioned or limited, except that it was to take effect after the widow’s death; nor was any particular mode indicated in which it was to be exercised. The property which the son was given the right to buy was worth much more than §8,000. At the time of the widow’s death the son was on his deathbed and died eleven days afterwards; and at no time after her death was he able to attend to any business requiring any continued effort, either mental or physical. — Held, that the son’s option to buy was not one which could be exercised only by a written declaration, and where he had fully made up his mind to accept the gift on the terms named, and the trustees knew of such fact and could have compelled him at any time to declare himself one way or the other, the option was not lost (though no formal declaration, either oral or written, was ever made by the son, directly, to either of the trustees, of his intention to purchase on the terms named), and his son and only heir had the right to take the property on payment of the §8,000.</p>

<p>Bill for dower. Heard on pleadings and proofs.</p>

<p>Motion, on petition, to open a decree of foreclosure and sale.</p>

<p>Final hearing on pleading and proofs.</p>

On bill for support, &c., and application to set aside orders, &c. Heard on petition to set aside service of subpœna and orders subsequent thereto, including order for temporary alimony. Heard on petition, answer and proofs taken orally.

<p>On application for preliminary injunction Heard on bill and affidavits, and answers and affidavits.</p>

<p>On bill of interpleader.</p>

<p>1. Where, in a suit to foreclose a chattel mortgage, the answer does not set up the defence that the mortgage was not recorded immediately, as required by Gen. Stat. p. 2113, a decree cannot be made holding the mortgage invalid on such ground.</p> <p>2. A mortgage can be declared fraudulent against creditors on a bill to foreclose only when the creditors raise that issue by their answer.</p>

<p>On bill for directions, &c.</p>

<p>1. Where, in a suit to set aside a conveyance to a wife as fraudulent, she admits in her answer that complainants’ judgment was rendered, upon a note given for a debt due from the husband, the question as to whether the debt arose upon an illegal gambling transaction cannot be considered.</p> <p>2. Actual intent to defraud upon all the circumstances of the case must be proved before a voluntary conveyance will be decreed void at the suit of a subsequent creditor; and a voluntary conveyance with a view of engaging in or continuing hazardous enterprises, and with the view of escaping responsibilities for losses which may be reasonably contemplated in such enterprises, while it is no longer held to be evidence from which the legal inference of actual fraud must be conclusively drawn, is evidence of such actual fraudulent intent and may either along or in connection with the other circumstances of the ease and according to the circumstances of each ease, be sufficient to make out the actual intent to defraud.</p> <p>3. Upon the facts of this case — Held, that a case of actual intent to defraud subsequent creditors, in which both the defendants participated, has been satisfactorily made out.</p>

This bill is filed by a mortgagor to redeem his real estate from the encumbrance of a mortgage. The cause is heard on bills and answers and replication. The mortgage was given to the defendant, a building and loan association of the State of New Hampshire, which has become insolvent, and whose affairs have gone into the hands of a receiver.

The Granite State Provident Association is a corporation, chartered under the laws of New Hampshire, with power, inter alia, to carry on the business of a building and loan association, which consisted in selling shares of stock, upon which the purchaser agreed to pay $1 a month until the value of the shares-reached the sum of $200; also in loaning the money so collected to shareholders, upon which loans interest and premiums were to be paid by the borrower.

<p>1. A will directed that all the testator’s property be sold and the proceeds invested by the executors and trustees, and that one-third of the income therefrom be paid to the widow of the testator during her life as often as semi-annually, the remainder of the income to be paid to testator’s children during life, in fixed but unequal proportions. Then followed the following paragraph: “ In the event of the death of my wife, the income herein given her is thereafter to be payable to my children respectively pro rata, and in case of the death of any child leaving issue, such proportions of the capital or corpus of my estate as was represented by the income of which such child shall have been entitled hereunder at the time of his or her death shall go and be paid to such issue in equal shares, if more than one; but in case any child shall die without issue, then his or her share of such income shall be paid ratably to my surviving children.” — Held, first, that by the use of the words “pro rata ” the testator meant that the income which the widow was to receive during life was upon her death to be paid to the children in the same proportions as the income given to them immediately upon testator’s death; second,, that the gift of the use of the income is to be regarded as equivalent to a gift of the use of the corpus; third, that the children of the testator took a life estate only in the income, both in that which was to be paid to them after the widow’s death as well as in that which was to be paid to them after the death of the testator.</p> <p>2. The income to be paid to the widow during life is to be regarded as interest and not as an annuity, and such part of said income as accrued after the last payment until her death belongs to her estate.</p> <p>3. The trustees are directed, in case of the marriage of a child, to pay to such child a marriage portion; and in case any son should engage in any business or profession with the approbation of the executors, to pay to such son one-half of the corpus of the share of such child — in either of which events the income of such child is to be correspondingly reduced. — Held, that a child takes an absolute and not a life estate, in a portion paid under these provisions.</p>

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

<p>On bill to foreclose chattel mortgage.</p>

This bill is filed to foreclose a chattel mortgage. The order of events relating to the creation of this instrument, its ownership by the present complainant and the status of the present defendant is this: A number of years since, Patrick McGinley, Peter Kane and Elizabeth Donahue were conducting a dry goods business in Trenton under the name of McGinley & Company.

<p>A testator gave national bank stock to the bank’s cashier, in trust, to distribute the dividends to designated employes during the corporate existence of the bank, “ either under its present charter or by virtue of any renewals or extensions thereof.” The bank was incorporated on June 19th, 1865, for the period of twenty years, and its existence was extended twenty years under the federal law of 1882. Testator died in November, 1891, and no law then or has since existed authorizing any further extension. — Held, that the gift violated the rule against perpetuities, and was void in that the trust might not be completely performed in twenty-one years.</p>

<p>1. In an action by the administrator of C. against the executor of Y., to recover money of C. deposited by Y., during a period of nine years, in a savings institution, it appeared that Y., who was C.’s nephew, for several years managed her business ; that she made two wills, in which she gave him substantially all her property; that a few days before her death she made a third will in favor of another nephew; that Y. contested the last will, and that on such contest he, as a witness, explicitly admitted that he had appropriated to his own use the money so deposited, except as to two items, and justified his acts by declaring that the money had been given to him before it was deposited.— Held, that complainant, who relied on Y.’s evidence in the will contest to prove the appropriation, was not bound to accept his evidence as to gift, where it appeared that the deposit account was with him as “trustee for C.,” while he had another account of his own in the same institution; that on receiving $200 of the money deposited, he gave C. a paper, reciting, “Eec’d of 0., to deposit in savings bank, $200; ” and that on the same day that he drew from the account $1,000, he gave C. a mortgage for the same amount, which was afterwards canceled.</p> <p>2. A mortgage given by a nephew to his aunt, which was unaccompanied by any bond, but which itself contained a covenant to pay the money in five years, was afterwards delivered by her to him with intent to make him a gift of it, and of the money which it secured. Before delivering it, she made in his presence an endorsement thereon that she had received “principal and interest to date,” and directing the register to “cancel this of record.” — Held, that the gift of the money secured was effectual.</p>

<p>If the mortgagee foreclose a purchase-money mortgage against the mortgagor, and the mortgagor shows that the covenant against encumbrances has been broken in such manner as to give him a claim to substantial damages, he may reduce the mortgagee’s demand to the extent of those damages.</p>

<p>A corporation, after becoming insolvent, cannot give a mortgage to secure a pre-existing debt, though the creditor have no notice of the insolvency, Corporation act (P. L. of 1896, p. 298 § 64) prohibiting a transfer by corporations, after becoming insolvent, of any of their estate or effects, except to bona fide purchasers for valuable consideration.</p>

On bill to foreclose. The bill is filed by the complainant to foreclose six mortgages upon a number of tracts of land in Warren county. The defendants are William Hill, the owner of the equity of redemption, and his wife, several judgment creditors of Hill and Thomas P. Frome, who is both a judgment creditor of Hill and a grantee from him of one of the tracts described in several of the mortgages.

On bill, &c., and petition for leave to file supplemental answer. On order to show cause why the defendant Abram Anderson should not be allowed to amend his answer and set up a tender and request for release made subsequent to the filing of his answer.

On bill and final hearing. This is a bill filed by the complainant, the owner of a beer saloon, at the northwest comer of Fourth and Market streets, in Camden, against the Trenton Brewing Company, a chattel mortgagee, claiming a lien upon certain equipment of that saloon, and August Weber, the lessee of the saloon and mortgagor in the chattel mortgage, and seeks to enforce a covenant not to remove improvements, &c., from the saloon, and to obtain an injunction to. restrain…

On bill to foreclose and exceptions to master’s report. This is a bill to foreclose two mortgages held by the complainant, Bridget Moran. Her right to have a decree in accordance with the prayer of her bill is not disputed.

<p>1. A testator will be deemed to have had capacity to make a will if it clearly appears that he comprehended his property, the natural objects of his bounty, the character of the business in which he was engaged, and the disposition he resolved to make of his property when he gave instructions for the will, and when he executed it, though it appears that at the period when the will was made he was in an incipient stage of a fixed mental disease, which at times had so affected him as to incapacitate him from making a will.</p> <p>2. Where the proof of undue influence was so strong as to cast upon the proponents of a will the burden of showing that such influence had not been exerted, such burden was not sustained by the opinions of the subscribing witnesses that the testator had not been influenced, and the fact that the testator, during the months covered by the process of will-making, had echoed the arguments of tlie favored heirs for partially disinheriting a proper object of his bounty, where the favored heirs did not testify and explain their participation in the production of the will, and deny the exertion of undue influence.</p> <p>3. Upon the facts established in this case - Held, that the burden is thrown unon the proponents to show that undue influence was mot exerted.</p>

<p>1. The mere fact that a favored legatee and devisee denounces those who are discriminated against to a testator who is well in body and strong in mind, and surrounded by friends, and within reach of the protection of those who are denounced, is not sufficient to create a presumption against the instrument.</p> <p>2. A party alleging undue influence in the execution of a will must prove it either directly, or by proving such circumstances as will warrant a presumption against it.</p>

<p>Upon the facts proven in this case — Held, that there is nothing to show the will was the product of undue influence.</p>

This is a petition of appeal from an order of the surrogate of Gloucester county granting letters of administration upon the estate of William Grissom, deceased. The answer to the petition challenges the right of the petitioner to bring the order of the surrogate into this court by an appeal.

<p>1. When the consideration of lands conveyed to a wife is paid by her husband, the presumption is that the transaction is a settlement on the wife; but such presumption may be overcome by proof of facts accompanying the transaction, and showing the intent of the parties to have been that the husband should have an interest therein notwithstanding the conveyance to her.</p> <p>2. When the proofs show clearly that the intent of the parties is that only a limited interest in the lands should be settled on the wife, the husband holds in equity such estate and interest therein as was not settled on her, and her title is subject to a resulting trust in his favor to that extent.</p> <p>3. An agreement by a wife to devise lands to her husband which induces him to pay for them, and have them conveyed to her-, and to expend money in their improvement, is an enforceable contract; and when the wife in her lifetime repudiates the agreement and makes other testamentary disposition of such lands, the husband is entitled to the intervention of a court of equity to prevent such violation of the agreement.</p>

<p>1. When, by reason of dissensions among the directors of a trading corporation, there is a deadlock in the management of its business by them, a receiver pendente lite may be appointed.</p> <p>2. The court, in granting injunction against defendant, may impose as terms that an injunction relating to the same matter go against complainant.</p>

The action at law was commenced by attachment proceedings against the complainant, in which he appeared and gave bonds, and a preliminary injunction against the prosecution of this bond is also applied for.

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Woodbury Heights Land Co. v. Loudenslager, 10 Dick. Ch. Rep. 78.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Binns v. Slingerland, 10 Dick. Ch. Rep. 55.</p>

<p>1. To the effectual initiation of a suit brought in the court of chancery by a wife against a husband for maintenance under the twentieth section of the act concerning divorces, two things are necessary — -jurisdiction of the subject-matter of the controversy and jurisdiction of the person of the defendant.</p> <p>2. The method by which the state has authorized the court of chancery to acquire jurisdiction of the person of the defendant in a suit brought under said twentieth section is that prescribed by the act respecting the court of chancery. 3. The subpoena was served neither by delivering a copy personally to the defendant nor by leaving a copy at his dwelling-house or usual place of abode, but, after he had departed from the state without intention of returning, by leaving a copy at his former place of abode. No step was taken to serve the defendant as a non-resident by publication and notice. — Held, (1) that the service of the subpoena was void; (2) that because the service of the subpoena was void, the court did not acquire jurisdiction of the person of the defendant ; (3) that since the court did not acquire jurisdiction of the person of the defendant, orders and proceedings made and taken in the suit did not bind him, and, on his application, made under special appearance entered for that purpose, must be set aside.</p>

<p>On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in Pratt v. Boody, 10 Dick. Ch. Rep. 175.</p>

The execution of the mortgage was directed by the votes of three directors of a board of five. Held: the right of these appointees to hold their offices was not questioned, but, on the contrary, recognized. They were held out, by the assent of the stockholders, as the agents of the corporation. They were directors defacto.

<p>Appeal from order of the chancellor, dissolving an injunction. (No opinion filed.)</p>

The complainant asks that the defendants be compelled to convey to him a strip of land in the city of Bayonne, which bounds on the Newark bay, which he has taken possession of, under the contract he seeks to enforce, and has improved and which now constitutes his home. The defendants are the heirs-at-law of Martin D. Tyrrell, deceased, and as such are tenants in common of the lands in question.

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in See v. Heppenheimer, 10 Dick. Ch. Rep. 240.</p>

<p>On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in Livesey v. Jones, 10 Dick. Ch. Rep. 204.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Meredith v. Zinc Co., 10 Dick. Ch. Rep. 211.</p>

<p>On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in Blue v. Everett, 10 Dick. Ch. Rep. 329.</p>

On order to show cause why an injunction shall not issue to restrain the construction and operation of an electric street railway.

On motion to strike out the general clause of an answer reserving exceptions, in contravention of the prohibition of rule 208, and to dismiss all of the answer which is filed by way of cross-bill.

<p>A bill for the foreclosure of a mortgage alleged that complainant, as executor of his father, had been devised §>2,000 in trust, the interest to be paid to testator’s widow for life, and at her death (which had occurred) the principal to be divided among his children; that the §>2,000 was invested in a mortgage ; that subsequently the executor individually bought the land and assumed the mortgage, and that he had assigned his share in the trust fund to another. The cross-bill set up a judgment against him, obtained by his mother, because of failure to pay the interest to her before the assignment of his share, and claimed that it was a prior lien thereon, and that all the interest of complainant in said fund represented' by the mortgage was merged in his title by virtue of his deed to the land, which became subject to the lien of said judgment. — Held, that the question of merger was properly a part of the case, and hence not liable to be stricken from the cross-bill.</p>

<p>1. B. purchased land from W. and erected thereon a dwelling, and after-wards, under parol agreement with W., entered upon remaining lands of W. and laid therein iron pipes from a spring of water thereon to his own land and a hotel property of W. The parol agreement was to the effect that the aqueduct thus made should be the joint property of B. and W. and their heirs and assigns, and that the spring of water should be and remain for the use and under the control of B. and W. and their heirs and assigns forever.- — Held, that B„ having expended his time and money in the construction of the aqueduct for the benefit of W. and himself upon faith in the parol agreement, took a license to use the spring and lands of W. in accordance with the agreement, which equity will not permit W. or his heirs or assigns to revoke, and in the enjoyment of which equity will .protect B.</p> <p>2. The obvious design of the sealed agreement recited at length below is, in consideration of mutual obligations, to thereafter, by that instrument, subject the land and spring to Moore’s use permanently. It created an easement.</p> <p>3. A court of equity will regulate the enjoyment of mutual rights in a common easement.</p>

<p>On demurrer to bill to quiet title under the statute.</p>

<p>Where it appears that the parties lived together as man and wife for several years, were known as such, acknowledged the relation by their daily actions and by express declarations to all persons with whom they came in contact ; that both were competent to contract marriage; that the cohabitation was connubial from the start, and that the result of it was a child, yet living, the marriage contract will be presumed, though there is a denial of a ceremonial marriage, it appearing that both parties are financially interested in avoiding the contract.</p>

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

<p>On final hearing on pleadings and proofs.</p>

<p>1. Thirty-two insurers under twelve separate policies filed a bill to enjoin separate suits against them, and alleged that some of their policies covered insured’s property in one of three buildings, and some in another, and some in all the buildings; that each policy contained a provision that the insurer should not be held liable for a greater proportion of any loss than the amount insured therein should bear to the whole insurance; that insurers had jointly tendered the aggregate amount of an award that had been made under insured’s agreement with them jointly to arbitrate according to the provisions of each policy. — Held sufficient on demurrer for want of equity.</p> <p>2. Such bill is not subject to demurrer as multifarious.</p>

<p>In the matter of the petition of Mulligan & Brazo to be admitted as parties complainant.</p> <p>On motion to vacate an order admitting said petitioners as parties complainant in the suit.</p>

Heard on bill, the joint answer of the two defendants, the cross-bill of Pauline de Socarras, and the replication of the complainant thereto.

On demurrer to bill. John Kocher, the husband of the complainant, Elizabeth, died seized of a house and lot in the city of Newark, which was subject at his death to the lien of a mortgage thereon for $1,000. By his will he left the use of all his real estate for life to his widow, the complainant, and she has enjoyed the possession of it since. He left no personal estate whatever, except a little furniture, the precise value of which does not appear.

<p>Where a son loaned his father money with which to pay assessments which were a lien on a lot, he was not entitled to be subrogated to such lien.</p>

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

<p>Where an executor and trustee, under a will probated in the surrogate’s court of New York, was found, in a compulsory accounting in that court, to be indebted in a certain sum to a devisee under the will, and the trustee invested said sum in land in New Jersey, in his own name, and transferred title to his wife, the devisee was entitled to have said sum declared a lien on the land, without first obtaining a personal money judgment against the trustee in New Jersey.</p>

<p>On motion for a receiver.</p>

<p>On bill, &c., and application for preliminary injunction.</p>

<p>1. A subsequent encumbrancer, who was a party to the foreclosure suit on a prior mortgage, cannot after foreclosure sale, and a purchase by the prior mortgagee, redeem from the prior mortgagee, without setting the sale aside as to all parties thereto.</p> <p>2. Where the right to redeem is disputed between two subsequent encumbrancers, the prior mortgagee may decline to allow either to redeem except by decree in a suit to which the claimants are parties.</p> <p>3. A sale under a decree foreclosing the equity of redemption of all the defendants thereto vests in the purchaser not only the rights of the mortgagee under whose mortgage the premises were sold, but all rights of the defendants in the suit.</p> <p>4. One having merely the right to redeem a mortgage is not entitled to a conveyance of or subrogation to the rights which the prior mortgagee has as purchaser under foreclosure sale, in addition to his rights as mortgagee.</p> <p>5. On confirmation of a foreclosure sale by the court, the deed issued to the purchaser relates back to the time of the sale.</p> <p>6. In a suit to set aside a foreclosure sale for the purpose of redemption, all the parties to the foreclosure proceedings who would have been proper parties to the suit to redeem if there had been no sale, and all intervening encumbrancers, must be made parties.</p>

<p>On bill for injunction, &c.</p>

<p>1. Where the income of a fund invested in shares of a corporation is bequeathed to one for life, remainder over to another, the remainderman is entitled to the actual value of the shares, including accumulated surplus or undivided earnings at the time of testator’s death, which forms a capital, the income of which, whether in the nature of dividends or otherwise, belongs to the life tenant from that time.</p> <p>2. A testator’s son was entitled, under the will, to the income of a fund invested in shares of a corporation, which. testator directed to be sold to the best advantage, and otherwise invested, after his death; and this was not and could not be done until dividends had been declared upon the stock. — Held, that the direction did not require an immediate sale, and that the stock should be treated as a legal investment pending the conversion, and the declared dividends as income, to which the son was entitled as life tenant.</p>

<p>1. The use of a portion only of a building for a meat and vegetable store is a violation of the provision of the deed of the lot that the premises are to be used for “dwelling purposes only.”</p> <p>2. The provision in a deed of part of a tract in a residence portion of a city that the premises are to be used for dwelling purposes only will be enforced against one purchasing from the grantee with notice thereof, unless it is made clear beyond the possibility of a doubt that the remainder of the tract will not be damaged by its violation.</p>

This bill is filed by the Coast Company to restrain the defendants from tearing down certain buildings in the course of erection along the edge of Spring lake, within the limits of the borough of Spring Lake, on laud which the latter claims has been dedicated to public use. The admitted facts are these: About the year 1875 several gentlemen conceived the notion of creating a seaside resort on the Atlantic coast.

<p>The mortgagee released a part of the mortgaged premises with notice of a subsequent mortgage upon the unreleased portion, but with an agreement with its holder that the first mortgage should be the first lien upon such unreleased part. — Held, that the agreement created a latent equity in favor of a third party and that a subsequent bona fide assignee of the second mortgage held it free from this equity.</p>

<p>There was a bequest to executors of $20,000 to pay the interest thereof to A during life, and the principal sum to A’s children after her death. There was a codicil, reciting the former gift as one to the executors to pay interest to A during her life, and revoking this bequest and directing the executors to invest $12,000 instead of $20,000, and pay the interest thereof to A during her life. — Held, that the clause in the will directing the executors to pay the sum invested to A’s children after her death was not revoked by the codicil.</p>

<p>1. A hill on behalf of an association of journeymen hatters against manufacturers of hats, to enjoin them from using a counterfeit of the union label adopted by it, because the factory is not working under the jurisdiction of such association, cannot' be sustained where it does not allege that said association is the owner thereof or that it is trading in the hats or caps to which the label is applied or has ever put them on the market, !</p> <p>2. Gen. Stat. p. 3678 §§ 1, 2, 5 held unconstitutional, as a local law granting to certain associations exclusive privileges.</p> <p>3. Act of March 23d, 1892, is entitled “A further supplement to an act entitled ‘An act to protect trade-marks and labels.’ ” There was no act entitled “An act to protect trade-marks and labels,” the ouly previous act relating to the subject of labels and trade-marks being the act of 1889 (Gen. Stat. p. 3678) entitled “An act to provide for the adoption of labels, trade-marks and forms of advertising by associations or unions of workingmen, and to regulate the same.” The latter act was unconstitutional, as a private law granting exclusive privileges. — Held, that, assuming that the title to the act of 1892 is to be read as referring to the act of 1889, the former is a supplement to an act to provide for the adoption of labels by associations of workingmen, to which restricted object the act itself must be limited, though-the enacting part embraces all kinds of persons.</p> <p>4. The words “the same ” in the title of the act of 1889 (Gen. Stat. p. 3678) cannot be read as referring to labels, trade-marks and forms of advertising generally instead of to those only adopted by associations or unions.</p> <p>5. The title of the act of 1897 (P. L. of 1897 p. 215) extends only to labels and trade-marks adopted by associations or unions of workingmen, and the body of the original act, or of any supplement thereto, must be restricted to such labels and trade-marks, and hence such legislation is unconstitutional, as a special law granting an exclusive privilege.</p> <p>6. The court cannot reject a part of the title of an act for the purpose of saving the act.</p>

<p>1. The administrator of C., a deceased daughter of the deceased mortgagee, and a daughter of C., to whom the administrator had assigned a half interest In the mortgage, filed a bill against the mortgagor individually and as administrator of R., the other deceased daughter of the deceased mortgagee, to foreclose. The money was admitted to be due, and the only disputed question was as to its distribution. — Held, that complainant, daughter of C., was not competent to testify to statements by R. during her life, contracting to bequeath her share in the mortgage to C.</p> <p>2. An agreement between two sisters who jointly owned a mortgage, that, in consideration of the one boarding the other, the property of the latter should “revert” to the former on her death, does not show a completed assignment thereof.</p> <p>3. Upon the facts established in this case — Held, that the evidence was not sufficiently convincing to show a gift of the mortgage.</p>

On bill, answer and proofs. The complainant in this case, William M. Burgin, trustee under the will of Charles F. Burgin, deceased, filed his bill to foreclose a mortgage made by James E. Day and wife to Randall E. Morgan, bearing the date October 14th, 1886, recorded in the Camden county clerk’s office October 23d, 1886, on a lot of land in the city of Camden.

On bill for injunction, &c. Order to show cause, answer and affidavits, &c. This is an application for a preliminary injunction to restrain the removal or disposition of certain chattels and also certain moneys due upon a contract between the defendant Nelson and the Seaside Park Company. The complainant is the receiver under appointment in aid of a recovery had by J. C. McNaughton & Company against the defendant Nelson in Ocean county circuit court.

On bill, answer and proofs. The bill of complaint in this cause was filed by the Trenton Potteries Company, a corporation of this state, as complainant, against Richard C. Oliphant, Hughes Oliphant, Robert N, Oliphant, Sidney M. Oliphant, James V. Oliphant, Samuel D. Oliphant and Henry D. Oliphant, defendants, setting up the sale by the defendants to the complainant, of the Delaware pottery and its good will and business, its recipes and formulae by the several agreements…

On bill, &c. This bill is filed by the complainants as executors and trustees under the last will of Joseph N. Peirsol, against his devisees and legatees, who were also his heirs-at-law, for the purpose of obtaining the instruction of this court touching the powers and duty of the executors and trustees with respect to certain trusts imposed upon the complainants by the terms of the will.

On bill to quiet title, answer and proofs. This bill is filed under the statute authorizing suits to quiet title. Gen. Stat. p. 3486.

<p>A testator, by Ms will, gave a life estate in his property and created two successive powers of sale, either of which might pass a fee when exercised. The legal title to the fee descended to the heirs-at-law, subject to the operation of the powers of sale. To a bill filed seeking a decree directing the executors to execute the second power by a conveyance to each beneficiary of a proportionate undivided interest in the land — Held, that the heirs-at-law of the testator are necessary parties.</p>

<p>On appeal from a decree of the orphans court of Passaic county, which admits to probate a paper purporting to be the last will and testament of Thomas C. Stewart, deceased.</p>

<p>A lawyer, employed by a testatrix with unsettled testamentary notions as to the disposition of her entire estate, to draw her will, .can participate in her bounty, in a material degree, only after a very clear exhibition that his conduct was fair and unobjectionable, and that the testatrix exercised, with relation to her bounty to him, a judgment independent of the confidence induced by his confidential relationship to her.</p>

Canfield, who then held the legal title. The land conveyed was a small building lot, included in a large tract of land laid out by Canfield and the defendants for the purpose of selling in lots for building sites.

<p>On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in Trenton Passenger Railway Co. v. Wilson, 10 Dick. Ch. Rep. 273.</p>

<p>On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in Clark Thread Co. v. William Clark Co., 10 Dick. Ch. Rep. 658.</p>

<p>On appeal from a decree in chancery. (No opinion filed}</p>

The allegation of the bill is that the conveyance was made by Barlow to Witlirow for the express purpose of defrauding the complainant and defeating the collection of his debt, and that it was made without consideration paid by Withrow to Barlow; or, if any consideration was paid, still, that Withrow had full notice of Barlow’s object in making the conveyance.

On March 23d, 1882, Thomas W. Finn gave his bond to Ann Swanton conditioned for the payment, on July 25th, 1887, of an indebtedness of $35,000, and secured the same by mortgage of certain lands in Monmouth county.

That it should have been sold in parcels seems to have been the judgment óf the sheriff himself at the time of sále, and he did not put the premises up for sale in parcels by reason of the demands of the complainant that it should be sold in bulk. The complainant bought in the premises in bulk for the amount of the decree, with costs and interest, about $25,000, and increased her own bid for the purpose of reaching this amount.

<p>1. The power to direct either party to a suit to give to the other an inspection and copy, or permission to take copy, of any books, papers and documents in his possession or under his control, is inherent in a court of equity, and can be exercised in the absence of any statute conferring such right.</p> <p>2. Gen. Stat. p. 2559 § 157 does not apply to a court of equity, the act of which it forms a part being entitled “An act to regulate the practice of courts of law.”</p>

<p>1. The receiver of an insolvent corporation was directed to pay a dividend on each claim, duly proved to his satisfaction. R., a creditor, duly filed her claim under oath, alleging that the corporation was justly indebted to her in the sum of §10,000 for money loaned, with interest, and that said indebtedness-was evidenced by a chattel mortgage and four promissory notes of said corporation, the particulars of which were specified in the proof of claim, and that an interest in said claim, to the extent of §5,000, had been assigned by her to T., as collateral security, and that the claim was presented on behalf of T. as-well as on her own behalf. T., who was also a creditor, duly filed a claim under oath upon another promissory note of the corporation, but made no proof of his interest in said indebtedness of §10,000. In point of fact, as is shown by the evidence in the cause, the claim proved by T. was the indebtedness to which his interest in the claim proved by R. was collateral. The proofs on file did not disclose this fact. The receiver paid to R. the dividend on the entire indebtedness proved by her claim, and to T. the dividend on the claim proved by him. T. sued the receiver, to compel him to account for the share of T. in the payment so made to R. — Held, that said two claims on file afforded to the receiver satisfactory proof that the dividend on the entire indebtedness of §10,000 was payable to R. as to part thereof in her own right and as to the remaining part for T.</p> <p>2. A creditor of an insolvent corporation, in order to entitle himself to a dividend, must do more than put the receiver upon inquiry as to his claim. He must duly file sworn proof, in itself satisfactory. If he fails to do so he cannot, after another creditor has been paid a dividend on satisfactory proof, hold the receiver accountable for the whole or any part of such dividend, upon the ground of notice of the existence and particulars of his own claim, derived from circumstances extrinsic to the proofs on file.</p> <p>3. It does not appear that, in this case, the receiver had such notice.</p>

The leased premises, as described in the lease, are “the house and premises lying- and situate in the city of Jersey City, known or designated as No. 264 Johnson avenue, and all the buildings, outhouses and premises of said place, with the appurtenances.” As appears by the pleadings and proofs, 264 Johnson avenue was a lot about twenty-five feet front and forty feet deep, upon which a house had been built, covering nearly or quite the whole of the lot No. 264.

These terms will be that the complainant, within forty days from the entry of decree, pay to the defendant the amount paid by her at the sheriff’s sale for the deed, with interest, and also the entire amount due on the mortgage given by complainant to Paulina Baphael, and which mortgage was subject to the judgment.

The deed declared that the premises were conveyed subject to two mortgages, the first for $1,600 and the second for $2,000, which mortgages, it was stipulated, “theparty of the second part hereby agrees ” to assume and pay, together with all interest now due thereon, “ as part of the consideration for this conveyance.” On June 10th, 1895, the grantee, Herron, sold the property to one Phillips, but in this deed there was no clause of assumption.

Lippincott’s rights of the decree made in this court on June 6th, 1877, in the suit to which Mr. Lippincott was a party complainant as the husband of Alice Lippincott, formerly Alice Potter, who was also a complainant. I have examined the record in this cause, and considered it with the aid of the very full briefs of counsel, and reach the conclusion that the decree in question cannot be held to be a bar to the right now set up by the defendant in his cross-bill.

<p>On appeal from a decree advised by Vice-Chancellor Reed, whose opinion is reported in Attorney-General et al. v. American Tobacco Co., 10 Dick. Ch. Rep. 352.</p>

<p>On appeal from a decree advised by Vice-Chancellor Stevens, whose opinion is reported in Parret v. Craig, 11 Dick. Ch. Rep. 280.</p>

This decree was made on the 23d day of [November, 1897, in favor of the complainants, and it directed that if the complainants should, within thirty days from the date thereof, pay or tender to the defendant, Catherine McCormick, $3,242.07, with interest from May 22d, 1897, then the defendant should convey to the complainants the lands and premises in the bill described.

<p>On appeal from a decree advised by Vice-Chancellor Grey, whose opinion is reported in Burgin v. Rutherford, 11 Dick. Ch. Rep. 666.</p>