Volume 57 — New Jersey Equity Reports

Oil motion to strike out a portion of a bill to enforce the observance of a covenant, under rule 213, in lieu of demurrer.

<p>1. Upon -proper application, where the proofs clearly exhibit that a corporation is insolvent and that there is no reasonable prospect that, if let alone, it will soon become safely solvent, a receiver will be appointed.</p> <p>2. The requirement of the statute that proof shall be made that an insolvent corporation will not be able to “ resume” its business with safety to the public and advantage to its stockholders within a short time does not predicate a complete suspension of business before a receiver can be appointed, but the taking up again and performing such functions or duties as shall have been suspended because of the insolvency, such as the payment of its current obligations.</p>

<p>1. The issuance of a commission of lunacy is a matter of judicial discretion.</p> <p>2. Such a commission will not be issued in behalf of a man alleged to be a lunatic, who has no estate and who is incarcerated in a well-appointed prison under conviction of murder in the first degree, punishable with death.</p>

<p>1. Where a party desires to question a decree which has not been enrolled, upon new facts, the establishment of which depends upon conflicting proofs and inferences, he should apply to the court for leave to file- a bill in the nature of a bill of review, upon proof that the new matter could not, by reasonable diligence, be produced or used by him in the original cause.</p> <p>2. He will be held to this practice where the decree binds and benefits a class the members of which are not all before the court, so that the court, in according the leave sought, may impose terms as to their notification of the proceeding.</p> <p>3. That one creditor of an insolvent corporation, not about to resume its business with safety to the public and advantage to its stockholders, institutes proceedings to have the insolvency, &c., adjudged and a receiver appointed, with ulterior purpose of self-advantage, will not defeat the proceedings.</p> <p>4. One who holds the legal title to, and a beneficial interest in, a debt due from an insolvent corporation is a creditor within the meaning of the statute, capable of instituting and prosecuting proceedings in insolvency.</p>

<p>G. mortgaged his lands to C., “to [in the language of the bill] secure ana preserve the said property (to the amount of said mortgage) from any losses which said G. might thereafter incur,” and thereafter conveyed them to B. O. refuses to cancel the mortgage, and B. seeks to have the mortgage canceled by the decree of this court. — Held, that if the language of the bill means that the purpose of making the mortgage was to defraud the creditors of G., B. taking conveyance from him and succeeding to his rights only, will not be aided by the decree of this court, and if such be not the meaning of the language of the bill, that the language is uncertain, vague and indeterminate in its statement of a material fact upon which the right to relief depends, and that in either case the bill is bad upon demurrer.</p>

<p>1. Where two legacies are given simpliciter to the same legatee by different instruments, the presumption is that the later is cumulative, whether its amount be equal or unequal to the former.— Held, in this case, that six legacies given by tbe fifth codicil to the will are not substitutional for six legacies given to the same legatees by previous codicils, both because of the rule of. interpretation stated and because of a manifest intention in keeping therewith.</p> <p>2. Two legacies of money equal in amount, bequeathed to the same legatee in one and the same instrument, are considered as mere repetition of each other, and the legatee will take only one. — -Held, in this case, the rule stated is applied where five legacies of §1,000 each to the same persons are given, without explanation of the duplication, by both the fourteenth and seventeenth clauses of the fifth codicil to the will, it appearing, from the fashion in which the codicil was framed, that confusion and forgetfulness may have existed.</p>

Heard on bill, answer and proofs. The object of the bill is to revive and enforce a decree for the payment of money. The defence is the statute of limitations. The question is as to the actual date of the decree. The facts are undisputed. In October, 1876, James E. Stoutenburgh, administrator with the will annexed of Albert R. Terhune, filed his bill against the defendant, Van Bussum, and wife and others to foreclose a mortgage securing a bond made by Van Bussum to Terhune.

<p>1. A by-law of a corporation provided that five-eighths of its stock should be represented at every stockholders’ meeting. The stock was divided into three thousand shares. At such a meeting only four of the stockholders were present, who represented four hundred and sixty-nine shares. The wives of two of such stockholders held one thousand shares each, but the minutes did not show that they were present, or that any proxies were presented for them. The proof showed' that the husbands did present proxies for their wives, and voted on their stock. — Held, that bonds issued at such meeting were valid.</p> <p>2. In an action of foreclosure it appeared that the mortgagor was a New Jersey corporation, but the mortgage was executed in New York. The answer set up usury under the New Jersey law, but made no affirmation as to the laws of New York. — Held, that being a New York contract, its validity should be determined by the laws of that state, and, there being no allegation as to those laws, defendant was cut off from the defence of usury.</p> <p>3. A corporation agreed to sell §40,000 of its bonds and §5,000 of its stock for §33,000, the purchaser to take up §15,000 of bonds of a prior issue, and pay the balance in money. He obtained the latter bonds for $14,000, and received the receipt of the president of the company for §15,000. — Held, that for the purpose of carrying out his contract he was entitled to the §15,000 as a payment.</p> <p>4. Upon foreclosure of a mortgage given to secure an issue of bonds by a corporation, it was contended that the loan was extortionate. Evidence showed that §40,000 of the bonds secured by the mortgage and §5,000 of the stock of the company were given for §33,000; that the security for the loan was of doubtful value; that the money was advanced at times of financial stringency, and that the present stockholders had purchased the great majority of the stock with notice of the mortgage, and that subsequently and before suit began the company, under their management, entered into an agreement of compromise with the bondholders and their trustee, settling the amount due upon an equitable basis and had since defaulted in payment. It was held that complainant was entitled to a decree of foreclosure, and that the computation of the amount due should be based upon the compromise agreement.</p>

<p>On hearing to take an account of waste.</p>

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

Heard on bill, answer and proofs. ■ [The cause was partly heard by the late Vice-Chancellor Green in his lifetime, and most of the testimony taken in his presence-. After his death additional testimony was taken before a master, and the case was then brought on for final hearing on the pleadings and proofs so taken.]

Heard on bill and answer. The bill is filed under the act providing for suits in the court of chancery to quiet title, by Serophine Fountain against the mayor and common council of. the city of Newark, and its object is to have declared to be void a certificate of sale of land owned by complainant, held by the city of Newark, founded on the lien of. an assessment made under what is known as the Martin act. P. L. of 1886 p. 149.

<p>1. Where a receiver makes up an account under a special direction which necessarily includes payments made by the insolvent corporation before his appointment, and enters in his account entries of payments appearing on the corporation’s ledger for which he can produce no vouchers, the fact that vouchers had been furnished originally may be established by the testimony, of one of the officers of the company.</p> <p>2. Where a contract is made between a patentee and a company by which the company is to prosecute all claims for infringement on the patent or for the royalties thereon, and out of the proceeds of any suit for damages or royalty to pay costs and attorney’s fees incurred which were not taxable against the defendant, and pay the balance to the patentee, the costs and attorney’s fees of a suit begun in equity for the infringement of the patent, which was decided adversely on the ground that the article was manufactured by the defendant upon a proper license by the patentee, may properly be deducted from the amount realized in a subsequent action at law between the receiver of the company and the same defendant to collect royalties.</p> <p>3. Where a patentee of a railroad signal sold his patent to a company, and was to receive a royalty on all signals sold by the company, and he claimed under his contract the same royalty on signals subsequently manufactured by another company previously licensed by him, which royalty was collected by his assignee, the amount which he claims must bear its proportionate share of the expenses of collection. •</p> <p>4. An attorney received a note secured by a void mortgage from his client for services rendered in a suit, and receipted for it with the condition that it should be in full payment when paid. — Held, that his lien on the judgment was not thereby lost.</p>

<p>1. A deed absolute in its terms is reduced to the grade of a mortgage by a concurrent writing in the nature of a defeasance clause, signed by the grantee. Quaere. As to the effect of Gen. Stat. p. 2106 \ 21 upon the record of such a deed in the registry of deeds.</p> <p>2. Under Gen. Stat. p. 2106 $ 22, providing that “every mortgage shall be void and of no effect against a subsequent bona fide mortgagee or purchaser for a valuable consideration not having notice thereof, unless it shall be * * * registered,” the failure to so record simply deprives the holder of any benefit from the registry as a matter of notice, and does not make the mortgage void as to purchasers or encumbrancers with actual notice thereof.</p> <p>3. A third person’s possession of land is notice to a subsequent judgment creditor of everything in regard to his title which the creditor could have learned by inquiring of him.</p> <p>4. A party who holds a legal title to property, but who is out of possession, cannot ask the aid of equity to remove a cloud on his title, which has in it none of the elements of fraud, accident or mistake, unless his title is perfectly clear and paramount to the supposed cloud, and he is not practically bringing ejectment in chancery.</p>

In partition. Exceptions to master’s report, finding a lien upon tbe land held in common in favor of one of the tenants, based upon advances made by him for the payment of taxes and .assessments.

Bill for divorce. Heard on bill, and plea admitted to be true. The bill sets out a marriage between the parties, a desertion of the complainant by the defendant on the 9th of April, 1892, and a continuance thereof for more than the statutory period, and also adultery on the part of the defendant, committed since that date, and prays for divorce and alimony.

Heard on bill, answer, plea, replication and proofs in open court. The complainant is one of the lieirs-at-law of Samuel Lewis, deceased, late of the county of Camden, who died in 1870, seized of certain lands in the city of Camden.

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

On bill for injunction, &c. Application for preliminary injunction, heard on bill and affidavits and answering affidavits.

<p>1. A bond maturing in two years, with an option of the mortgagee to declare it due on default of any payment of interest, was secured by a mortgage with a clause “ that the parties of the first part * * * shall have the right to redeem any or all” of the mortgaged property “at any time prior to the two years hereinbefore mentioned” on payment of sums certain to be applied on the mortgage debt. — Held, that the equity of redemption runs to the maturity of the bond, irrespective of an exercise of the mortgagor’s option, or of the fact that under Gen. Stat. p. 2112 ¶ 47, requiring foreclosure to be the first remedy to enforce such debt, his legal remedy is postponed.</p> <p>2. Where a mortgage specially provided that the equity of redemption should run to the maturity of the bond, no bill to foreclose can be filed until the expiration of that time, although the bond gave the mortgagee an option to declare it due at any prior time on default of payment of interest, since a decree of foreclosure necessitates a sale which is a final bar to the equity of redemption under the laws and practice of New Jersey.</p>

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

<p>1. Where a broker, acting as an agent in loaning money, charges a borrower, by the terms of the mortgage, more than one-half of one per cent, for obtaining the loan and for extending it from time to time, in violation of Gen. Stat. p. 3703 $ 5, the loan is usurious.</p> <p>2. Where a broker, in assuming an agency for lending money belonging to another, guarantees the loans as one of the considerations of the employment, an exaction by the broker from a borrower of a sum to guarantee the repayment to the lender is without consideration as between the broker and the borrower, since the broker is bound to guarantee the loans under its general contract with the lender.</p> <p>3. Where a mortgage, to secure a loan made by a broker as the agent of the lender, was allowed to be used to secure usurious compensation to the broker, who subsequently became the owner of the mortgage, the payments illegally received must be applied on the principal of the mortgage debt.</p>

<p>1. Where a suit abates or becomes defective by the death of a party and is revived by his heirs, it is a continuance of the same suit, and both parties are entitled to the benefit of all former proceedings prior to the abatement.</p> <p>2. Where a suit abates or becomes defective by the death of a party and is revived by his heirs, they are not bound by proceedings taken after his death, prior to revival.</p> <p>3. One of the complainants in partition died, and without a revival by his heirs or a suggestion to the court of his death, evidence was taken and the suit brought to a final hearing, and the chancellor rendered an adverse decision without signing or advising a decree. — Held, that heirs of the deceased complainant, after an order of revivor under the statute (Gen. Stat. pp. 2, 3 § 5, tit. “Abatement”) and an amendment to the original bill, stating their succession, Could only show whether the new party has the representative character imputed to him, and could not introduce evidence to supplement complainants’ case.</p> <p>4. The surviving parties were bound by the decision on which a decree should be entered between them.</p> <p>5. Where a complainant in partition dies in the progress of the cause and his heirs secure a revival, his widow becomes one of the new complainants, although, as a wife, she was one of the original complainants.</p> <p>6. Where one of the complainants dies subsequent to a decision on a bill for partition, the decree should be dated as of the date of the argument.</p> <p>7. Where, on a bill for partition of two tracts of land, it appeared that all the complainants and defendants are interested in one of the tracts only, and that part of the complainants and defendants are interested in the other, as to the latter tract the bill will be dismissed, but, as to the complainants interested therein, without prejudice.</p> <p>8. On a bill for partition, if the legal title to the land is put at issue the court of chancery will not proceed to settle such title, but will either dismiss the bill or retain it, to allow the title to be settled in an action at law.</p>

<p>On bill, &c. On final hearing, after trial of title at law, and application for permanent injunction.</p>

<p>1. A bill was filed by one of the beneficiaries, under a voluntary settlement, for the sole purpose of establishing a trust in personal property alleged to have been originally created by a deed conveying the property and declaring the trust. Upon the facts established in the case — Held, that the deed was an absolute transfer.</p> <p>2. A complainant seeking to establish a parol trust collateral to a deed conveying personal property absolutely, must formally allege the claim. It cannot be shown under a bill to establish a trust declared by the deed itself.</p>

<p>A railroad company will not be enjoined from constructing its line across-complainant’s land, before condemning his interest in same, where the value of the land was nominal, and defendant had made every effort to get title thereto, and complainant had purchased it at the instance of a rival road of defendant, and with its money, and for the sole purpose of baffling defendant in the completion .of its line, since an injunction does not issue as of right, and the rule that courts take no notice of the purpose in the mind of the parties-in asserting or defending their rights had no application.</p>

<p>1. Where an injunction has been allowed to restrain violation of a contract not to engage in the same business as that sold in competition with the purchaser, and, by virtue of a subsequent contract between the same parties, it is claimed that such restraint of trade is waived, an application to vacate such injunction, not being designed to change the original decree, may be presented by petition rather than by bill of review.</p> <p>2. One who purchases the good will of a business with a contract by the seller not to re-enter the same business in competition with the buyer in the same place, does not, by subsequently entering into a general copartnership with the seller, inferentially waive such contractual restraint; nor does a dissolution of the partnership invest the seller with the right to re-enter business as a competitor, as an incident to his moiety in the good will of the firm.</p>

<p>1. When a mortgagor successively sells portions of mortgaged premises by general warranty deeds, upon a foreclosure of the mortgage any of the mortgaged premises still owned by the mortgagor will be sold first, and if the mortgage debt still remains unpaid the parcels last sold by him will be sold next, and so on, in the inverse order of the deeds, until the mortgage debt is satisfied.</p> <p>2. Where a purchaser- of a part of mortgaged premises assumes the payment of all or a portion of the mortgage on the whole of such premises, the land so purchased is liable for the mortgage debt, or such portion of it assumed by the purchaser, before the remaining portion of the mortgaged premises held by the mortgagor or by subsequent purchasers from the mortgagor can be sold in satisfaction of the mortgage debt.</p> <p>3. Where there was a mortgage for §1,200 on a certain tract of land, and two parcels of said land were sold by the mortgagor under conveyance wherein each grantee assumed the payment of a certain mortgage for §600 on the parcels conveyed, although there was no mortgage for §600 on either of said parcels, the assumption of the grantees is equivalent to an assumption to pay §600 of the mortgage on the whole tract.</p>

<p>1. A corporation, being involved and in the hands of a receiver, arranged, through its officers, with a majority of its creditors for an extension by giving four time-notes to each creditor to cover his claim, and the receiver was thereupon discharged. Two of the creditors did not receive notes under such arrangement. Payment on the first of the series of notes was defaulted, and it was then proposed to take up the notes by an issue of bonds in lieu of them, secured by mortgage on the corporation property, which proposition was accepted by a majority of the creditors, and the bonds were issued to them, some, however, retaining their notes and others being paid cash. — Held, that at the time of executing the bonds and mortgage the corporation was insolvent, within Corporation act \ 64, which prohibits transfers by insolvent corporations.</p> <p>2. Creditors who took deferred-payment notes to cover their claims against an insolvent corporation, and, on default of payment, surrendered them for corporate bonds issued to take up such indebtedness, are not bona fide purchasers-of the bonds.</p> <p>3. Where creditors took deferred-payment notes to cover their claims against an insolvent corporation, and, on default of payment, surrendered them for corporate bonds issued to take up such indebtedness, some of which notes bore the personal endorsement of the president and principal stockholder, the agreement, being in the nature of a composition, invalidated the endorsement, because it was given to only part of the creditors, and hence it was not a matter of value so as to constitute the takers of the bonds purchasers for value.</p>

<p>'Heard on bill, and answers.</p> <p>The bill is filed by a cestui que trust to compel her trustee to transfer to her the trust property. The bill also asks for an injunction restraining the trustee from taking any proceedings in any other court, in this or any other state, to surrender his trust, or from- doing any other act in relation to the trust fund, except such acts as shall be necessary to protect the same.</p> <p>The bill sets out that William Coffin, of Philadelphia, Pennsylvania, died in 1872, leaving a will, which was. probated in Philadelphia, and afterwards in Camden county, New Jersey, in which will are the following bequests:</p> <p>“To my sister, Mary E. Reybold, ¡S600 per annum during her life, and, after her death, five thousand dollars to Joseph E. Garrett in trust for her daughters, of which sum one thousand dollars is for the use of Matilda Garrett, his wife, and four thousand dollars for the use of Anna E. Rosenbaum, free from the control of her husband.”</p> <p>The bill then sets out that the said Mary Reybold is deceased; that in June, 1894, shortly after her death, the Guarantee Land, Insurance and Trust Company of Philadelphia, trustee under the will of Coffin, paid over to said James E. Garrett, as trustee for Anna P. Eosenbaum, the sum of $4,000, less a collateral inheritance tax; that Garrett, although requested by Anna P. Eosenbaum to pay over to her the said sum, or to assign to her the securities purchased therewith, refused to do so; that Garrett was, at the time he was appointed trustee under the will, as well as when he was paid the said sum, and still is a resident of New Jersey; that William Coffin, previous to 1872, had been for many years a resident of New Jersey, and died seized of real estate in New Jersey; that Anna P. Eosenbaum is married to one William S. Eosenbaum.</p> <p>The answer resists the prayer for injunction by setting up a proceeding in Pennsylvania, already commenced at the time of the filing of this bill, and resists the prayer for relief by setting up that the rights of the parties under the trust are to be measured by the law of Pennsylvania, which law the answer sets out.</p> <p>There are both an answer and an amended answer. The facts set up in these answers, in respect to the first point, are these: That before the filing of this bill, the trustee filed his account, showing the condition of the trust estate from the date when the trustee received the same, with the orphans court of the county of Philadelphia, as he was required to do by the laws of Pennsylvania, to which he was amenable; that he filed his account as trustee aforesaid, as well for the purpose of having his account passed, as also for the purpose of having determined, in the jurisdiction in which he was advised had control of the matter, the status of the trust and the character of the trustee in relation thereto as trustee, as well as the extent of the control, if any, which the cestui que trust may have over the trust fund; that the account was duly advertised for presentation to the said orphans court, on January 3d, 1898, and a copy thereof was sent to the cestui que trust, and that immediately thereafter the complainant filed this bill.</p> <p>The amended answer sets up the filing of the trust account ; that the trustee gave to the complainant the notice of such application which is required to be given by the laws of Pennsylvania and the practice of the orphans court; that the application and the proceedings taken by defendant in the said orphans court, in its regular course, raised and required a determination of the question whether or not the principal of the trust estate should remain in the custody of the defendant as trustee, to be used by him for the purposes indicated by the testator’s will, or whether the said prinicipal should be paid over to the complainant as cestui que trust, and this defendant be discharged as trustee; that said application has been heard and determined by the said court which has rendered an opinion upon the questions raised before it, which opinion is annexed to the answer.</p> <p>In respect to the prayer of the bill that this court shall order the trustee to transfer the trust property to the complainant, the answers aver that the law of the testator’s domicile must control all questions as to the status of the trust fund and its disposition ; that the trust is known under the law of said state as “ a married woman’s separate use trust,” the principal of which is not subject to the control of the cestui que trust during the lifetime of her husband.</p>

<p>1. A recital in a decree of divorce rendered by a court of another state, that the petitioner was a resident of that state for the statutory period, is conclusive in New Jersey, not only as to the period of citizenship but as to the fact of petitioner’s domicile in the other state.</p> <p>2. In an action by a wife to declare a decree of divorce rendered against her in another state void and for maintenance, the only charge of fraud was that there was an agreement for separation obtained from her by duress and fraud and that she was induced to withdraw her defence by duress and false representations. The evidence showed no agreement to withdraw such defence. After the execution of the agreement for separation the wife allowed a decree to go against her by default, and there was no duress that prevented her from continuing her defence. — Held, that the decree above referred to- must, in this suit, be regarded as a valid judgment.-</p> <p>3. A divorced wife cannot maintain an action for maintenance against her former husband.</p>

<p>On bill, answer and proofs.</p> <p>The complainant in this case is Mrs. Frances Hallenback, a widow lady, the mother of the defendant Mrs. Arabella Rogers,, who is her only child. The defendants are the daughter, Mrs. Rogers, and her husband, John M. Rogers.</p> <p>The complainant alleges that in 1873 she bought from John C. Bullitt the lot of ground at Cape May upon which the boarding-house known as the “ Marine Villa ” was subsequently built; that she paid to Mr. Bullitt, through the defendant John M. Rogers, $1,000 on account of the purchase-money, and that as Rogers “ was to assist in erecting the hotel and pay part of the purchase-money for the ground,” the deed for the lot was, at his request, made by Bullitt to the complainant’s daughter, then Arabella Hallenback. There were several subsequent purchases of adjoining lands, the titles to which were also taken in the name of the daughter. The complainant alleges that she largely furnished the house when it was built; that she took possession of it and managed and ran it for the benefit of herself and the defendant John M. Rogers, who shortly after the purchase had married her daughter. The daughter assisted, during the earlier period, in the management of the house, but of late the complainant has done it all. The complainant further alleges that she purchased a large part of the furniture of the hotel with her own money, or with the receipts from the business, though she admits that the rest of the furniture and large additions to the hotel itself have been paid for by the daughter and her husband. The daughter, her husband and children lived during the season with the complainant at the hotel, but at no time was any board asked or received from them. The hotel was advertised as “ ‘ Marine Villa,’ Mrs. F. Hallenback, proprietor.” For a number of years these publications were printed by the defendant Rogers. She claims that in the twenty years in which she has run the hotel she has made it a valuable property, “and has acquired a large interest therein by her labor and expenditures, and has brought her experience to the business and created a good will now attendant upon "the premises.” She further alleges that in 1895 she purchased an adjoining property known as the “Albert Cottage,” paying $2,500 in cash, and “ assenting that the title should be in the said Arabella Rogers,” the latter giving a purchase-money mortgage for $17,500, and she states that all payments made on account of the “Albert Cottage ” have been made in part out of the proceeds of the business of the “ Marine Villa,” and partly from pension money received by the complainant. She claims to have paid from her own money, and from that arising from the business, for repairs, insurances and taxes on the “ Marine Villa,” and also on the “Albert Cottage,” and somewhat on account of the mortgage on the latter cottage. She states that in the year 1897 the defendants refused to allow her to have access to the “ Marine .Villa,” or to have her personal belongings, books and papers, unless she would execute a lease and pay a fixed sum as rent, and that they threatened to exclude her from that property, and to let the “Albert Cottage,” of which she remains in possession, and she prays an answer without oath, and that “ the partnership existing between the complainant and the defendants may be dissolved, and an account taken under the order of this court of all the partnership dealings,” and that what appears to be due complainant may be decreed to be paid her by defendants, and for a receiver for the partnership assets, including the “ Marine Villa” and “Albert Cottage;” and that defendants may be restrained from selling or encumbering these properties or any of the other properties of the partnership, and that all the property of the partnership may be sold.</p> <p>The defendants answer the bill jointly and severally. They deny that the complainant purchased the lot of ground on which the “ Marine Villa ” was subsequently erected, and that she paid a part of the purchase-money to Rogers on account of that purchase as stated in the bill. They admit that the deed was made for that lot by Bullitt to the daughter, but they aver that this conveyance was made pursuant to a purchase of the property by the defendant Rogers, with his own funds, for the daughter whom he soon afterwards married, and they allege that he (Rogers) subsequently erected thereon the hotel or boardinghouse called the “ Marine Villa,” which he completely equipped and furnished at his own expense, for his wife. The defendants state that the complainant and the defendants jointly occupied the property, as one family, for a number of years, during which the complainant took an active part in the business management, without any express understanding or agreement between, the parties other than that the complainant should help in the business as one of the family. They further answer that, in 1893, the complainant agreed with the defendant Arabella Rogers to take a lease of the premises for the complainant’s exclusive use and benefit, at a rental of $3,000 a year, and that the complainant occupied the premises on those terms, and paid the first and second year of her occupation, under the lease; that having failed to pay the third year’s rent, the defendant Arabella Rogers, in the spring of 1897, took possession and commenced business on her own account. The defendants deny that the complainant purchased the “Albert Cottage,” and that she paid $2,500 on account of the purchase-money, and they say that the defendant Arabella Rogers purchased that property, with the assistance of her husband, and took the title in her own name, and that the complainant, up to the time she took possession of the “Albert Cottage,” never advanced or paid any of her own funds towards the purchase, improvement, repair or furnishing or expenses of any of the premises. They admit the complainant is in possession of the “Albert Cottage,” but they say she took possession of it without the defendants’ consent and without any legal right so to do, and they have refused her access to the “ Marine "Villa,” for fear that she would install herself therein and take possession, which she has sought to do, under the false pretext that some of her personal effects were left there, which she desired to remove.</p> <p>The defendants expressly deny that the complainant has any right, title or interest, either in law or equity, in or to either of the said properties, and that she was ever a partner with them or either of them; and they deny all right on her part to an accounting in respect either to the property or the business heretofore conducted thereon. And the defendants further insist that the matters complained of are determinable at law, and pray the same benefit as if they had demurred to the complainant’s bill.</p>

<p>1. Where a defendant’s testimony is discredited by documentary proofs and by the contradiction of other and disinterested witnesses in relating facts of which all may have knowledge, her testimony cannot be relied upon when narrating incidents (the truth of which is essential to her defence) whióh lie solely within her knowledge.</p> <p>2. When a woman who is with child conceals that fact, and induces a man who has had no sexual relations with her to go through the ceremony of marriage to her in good faith, and the man on discovering the truth separates from her and files his bill in this court for a declaration that the supposed marriage contract is a nullity because of the fraud she has put upon him, he is entitled to a decree that the supposed marriage has been void ah initio.</p> <p>3. A counsel fee will not be allowed the defendant on a bill filed by a man to declare his supposed marriage to a woman to be a nullity.</p>

<p>1. Where the only provisions of a turnpike road company’s charter which authorize the corporation to charge tolls empower it to “ demand and receive tolls for traveling each mile of said road not exceeding the following rates,” specifying rates for several vehicles drawn by one or more beasts, a man traveling the turnpike road upon a bicycle is not within the class from which the company is authorized to exact tolls, and the company has no power tó collect them from such a rider.</p> <p>2. The charter does not authorize the collection of tolls from everything which may travel the turnpike road, limiting only the rate which may be charged on the things named. It gives power to take tolls from the specific things named, at the specified rates, and from no others at any rate.</p> <p>3. The act of March 28th, 1892. (P. L. of 299 p. %99), which authorizes turnpike road companies which have faced their roads with stone to collect tolls from bicycle riders, has no application, under the pleadings, to this case.</p>

On bill, answer and testimony. The bill in this ease was filed by the complainant, the Cumberland National Bank of Bridgeton, to foreclose a chattel mortgage given to it by the defendants Baker and wife, to secure the payment of a pre-existing debt owing by Baker to the bank, not yet due, and also several notes not yet due, upon which Baker was bound as endorser and which were held by the bank.

<p>On bill and affidavits. Order to show cause.</p>

<p>1. This court has no jurisdiction, under its general equity powers, to make a decree for the support of a wife because of her husband’s failure to maintain her.</p> <p>2. To give this court jurisdiction to decree such 'support, under section 20 of the Divorce act (Gen. Stat. p. 1270), there must be an abandonment of the wife by the husband, or separation from her by his voluntary act, or circumstances equivalent thereto, and also a neglect or refusal on his part to support her. Both these conditions must exist to give this court jurisdiction.</p>

<p>A plea which sets up as a defence matters which appear upon the face of the bill, will be overruled. The defendant should demur in such case.</p>

On bill for injunction, &c., affidavits, Ac., and order to show cause, Ac. August Stephany was in his lifetime the owner of a saloon property in Atlantic City, known as the “ Extra Dry.” By a written lease under seal of both parties, dated June, 1897, he demised this property to one George McCormick, who entered into possession.

<p>On bill, &c., answer, &c., and order to show cause.</p>

On bill, answer and proofs. This bill is filed by the complainants, one of whom claims to be the owner of two twenty-second parts and the other of nine twenty-second parts of the residuary estate of one Thomas Costello, who died in the year 1877.

<p>1. The bill of complaint is sufficient if it state the legal effect of the complainant’s claim; matters of defence not affirmatively appearing on the face of the bill, must be brought into the record by plea or answer.</p> <p>2. A contract to convey lands set out in a bill of complaint will not on demurrer be held to be too vague in its identification of the property dealt with, where the elements of description are not manifestly applicable to different tracts, and they so point out its situation that it may be located,- and so name or suggest its boundaries, that when the lot is-located they may with reasonable certainty be ascertained on the ground.</p>

<p>The fact that an executor is entitled to the estate of the testator for his life does not excuse failure to ascertain what the estate amounts to through an accounting that will fix the charges against him and allowances to him, and thus settle between all parties in interest just'what corpus the life tenant is to be responsible for.</p>

<p>1. A general order to sell lands of the estate encumbered by mortgages, for which claims have been filed with the administrator, is insufficient to authorize a sale free from the mortgages.</p> <p>2. A statute (Gen. Stat. p. 2401 § 198) authorizes the sale of encumbered lands free from the encumbrances, upon certain conditions.</p> <p>S. On exceptions to an administrator’s account for moneys received from a sale of lands of the estate and paid to mortgagees of such lands, it appeared that the mortgagees had filed claims upon the debts secured by their mortgages, with the administrator of the decedent, and a general order for the sale of the lands was made. The purchasers -understood that the sale was free from the mortgages, a declaration to that effect having been made at the sale. The land was sold in parcels, making it impossible to ascertain the extent of the encumbrance on the different parcels, and the price was adequate, regarding the property as unencumbered. The proceeds were first applied in payment of the mortgages. — Held, that the order of sale should be amended nunc pro tunc, so as to authorize a sale free from encumbrances.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in McMichael v. Webster, 9 Dick. Ch. Rep. 478.</p>

<p>On appeal from an order advised by Vice-Chancellor Stevens, whose opinion is reported in Schmalz v. Wooley, 11 Dick. Ch. Rep. 649.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in Ransom v. Brinkerhoff, 11 Dick. Ch. Rep. 149.</p>

<p>On appeal from a decree on an accounting in Fougeray v. Cord et al.</p>

<p>Where the plaintiff in a suit for divorce'is required by statute to have been a bona fide resident of the state in which his suit is brought for a fixed period of time, in order to enable him to maintain his suit, the ascertainment by the court of the fact of such residence necessarily precedes a consideration of the merits of the case, and the determination of that question by the court is final, not only in the courts of that state but in every other jurisdiction where the validity of the judgment comes in question, unless such determination has been procured by fraud. When, however, the adjudication has been procured by fraud it is without extra-territorial effect, and the judgment will be treated as void in the courts of a sister state.</p>

Lang, 11 Dick. Ch. Rep. 603. Henry Lang died February 18th, 1896. By his will he gave to the executors therein named all his residuary estate in trust, with directions to sell and dispose of his personal property to the best advantage and to keep the proceeds and all ■ moneys of the estate invested in bonds s.ecured by mortgages on real estate.

The respondents, as judgment creditors of Edward K. Meigs and James F. Stewart, exhibited a bill for discovery under the provisions of the Chancery act that authorize proceedings with respect to unsatisfied judgments at law. Gen. Stat. p. 389 § 88 et seq. They therein alleged a fraudulent transfer by Meigs of all his property and assets to the New Jersey Lumber Company, of which he was president.

Dodd, 8 Dick. Ch. Rep. 69. The decree there advised was reversed because of a defect of parties (Dodd v. Lindsley, 8 Dick. Ch. Rep. 562), but the defect having been remedied the parties stipulated that the evidence in the cause should stand, and, without further hearing, a new decree in accordance with said opinion was advised and signed. The present appeal is from that decree.

117, I. O. O. F., v. Manning et al., who delivered the following opinion: The bill in this case is filed to foreclose a mortgage given by one John Manning, now deceased, to the complainant, to. secure the sum of $3,800, with interest, in one .year from its date, March 30th, 1882.

Zane, who delivered the following opinion: The insistence made upon the part of Mr. Sudbury, the second mortgagee, is that the mortgage of the association is paid, and therefore his mortgages have… Held: shall be entitled to the loan of $200, and in section 6 that the premium paid for the prior right to a loan of $200, or the multiple thereof, shall be at a rate per share and shall be payable monthly by the stockholder borrowing.

<p>On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in Macfarlane v. Richardson, 11 Dick. Ch. Rep. 191.</p>

<p>On appeal from a decree advised by. Vice-Chancellor Grey, whose opinion is reported in Ames v. Trenton Brewing Co., 11 Dick. Ch. Rep. 309.</p>

<p>1. Where, pending delivery of deeds under land contracts providing for payment on delivery but-silent as to possession, the purchaser, consenting to the vendor’s delay in executing the deeds, takes possession and erects buildings, equity will charge.him interest on the unpaid price.</p> <p>2. Where a purchaser took possession under a land contract that did not provide for possession or for interest on deferred payments, and a creditor of the vendor acquired title to the land subject to the contract, under a judgment sale, the latter could enforce an equitable claim for interest only from the date of his purchase, since the vendor’s equitable right to the value of the use of the deferred payment did not pass under the judgment sale.</p> <p>3. A purchaser took possession and erected buildings under land contracts which provided for payment on delivery of deeds and that he should pay taxes, but contained nothing regarding possession or interest on a deferred payment. A dispute arose as to interest, and to facilitate the transfer and prevent further delay it was agreed that the deferred payment should be made and the deeds delivered, but that “ the question whether [the vendor] is entitled to interest on said sum, and his right thereto, shall not be in any way affected by said conveyance and payment.” — Held, that the vendor might after-wards have interest in a suit for specific performance.</p>

On appeal to the chancellor from the rejection of a claim of the State of New Jersey for franchise tax presented to the receivers of an insolvent corporation.

<p>A debtor, in order to defeat judgment creditors, transferred land to one who had knowledge of the facts. A portion of the price was paid on a mortgage on the land, and another portion paid on a bona fide debt of the grantor. The balance was secured by a promissory note made payable to a member of the grantor’s family to satisfy an alleged debt which was not proven to exist. — ■ Held, that the deed would be decreed a mortgage to secure the two payments made and set aside as to the balance.</p>

The two causes heard together, by consent. The complainants are each the owner of a tract of land situate on the Wall kill river, at Hamburg, in the county of Sussex, with mills thereon operated by the developed power of the fall of that stream; and by their respective bills, filed December 28th, 1895, they complain that the town of Newton, through its commissioners for that purpose (who are defendants), by works erected during that year, diverted a portion of the waters of…

On exceptions to master’s report made in pursuance of a reference to take an account of rents and profits received by the defendant Margaret J. Switzer.

On demurrer. The defendants, Orgo and Bilancia, file separate demurrers to the bill. The pleading by way of demurrer by Orgo is followed by an answer which traverses the allegations of the bill.

Bill of interpleader. The complainants, the commissioners of public schools of the town of Phillipsburg, entered into a contract with one William B. Stevens to erect for them a school building called Sitgreaves School, in the town of Phillipsburg, Warren county.

<p>On demurrer of Eliza J. Arkenburgh.</p>

<p>1. When shares of stock, although still standing in the name of the assignee on the company’s books, appear to have been levied upon and sold by a judgment creditor of the assignor, and it is not shown that the purchaser has experienced any difficulty in obtaining a transfer, the title of the purchaser cannot be enforced or the assignee’s lien be removed in an action by the judgment creditor to set aside the assignment as fraudulent.</p> <p>- 2. Where conveyed real estate lies outside the state, and therefore not subject to the lien of a judgment obtained within the state, the courts thereof have no jurisdiction to set aside such conveyance as a fraud upon such creditor.</p> <p>3. Where a transaction is capable of two constructions, one that comports with honesty and one with dishonesty, the former should be adopted by the courts.</p> <p>4. A husband owing §8,000, and having a suit pending against him on another claim, transferred to his wife property, part of which was worth about §4,000, the other part being labor claims against an insolvent railroad of doubtful value, receiving the next day, in consideration thereof, §6,000 from the wife’s separate estate, which was used by him to pay his debts. The wife testified that the money was furnished to buy the labor claims when in fact it was used to repay money borrowed to purchase such claims. The wife supported the family out of her separate estate. She subsequently turned over to her husband the amounts realized on the claims. The husband afterwards paid the judgment rendered against him in the suit pending at the time of the. transfer. — Held, that the transfer was not fraudulent, although the wife may have had notice of the husband’s intent to defeat the debt involved in the pending suit.</p> <p>5. Where a conveyance is made for the purpose of defeating a single creditor, who is afterwards paid in full, and there were no other current creditors who might have been hindered or delayed, and there was no immediate intention to engage in a hazardous business and become indebted, a creditor who became so years afterwards cannot set up the old fraud in avoidance of the conveyance.</p> <p>6. A husband conveyed directly to his wife all his rights in the estate of his father. Shortly afterwards he made another conveyance to her, through a third person, of certain property received from his father’s estate, covering all the property so received to which his title had been perfected. He afterwards obtained title to certain land in another state, from such estate, but the former conveyance was not recorded in such state. — Held, that there was no conveyance of the property outside of the state.</p> <p>7. A husband conveyed property to his wife, who put it in charge of an agent to collect the rents. The husband occasionally managed to collect and retain some of the rents. In letters from the wife to the agent, she instructed him not to allow the husband to collect rents, and stated: ‘ ‘ Please do not pay the bills unless very small, for then it comes off of my income; otherwise, I can get [my husband] to pay ; as the rents are security for debt, I should not pay expenses.” — Held, that the conveyance, though absolute in form, was a mortgage, and a judgment creditor of the husband was entitled to redeem upon payment to the wife of the consideration which she gave, less the net rents and profits and cash which she may have received from the husband on account.</p>

Two causes tried together by consent. The object of the first bill is to enforce a title reserved by the General Electric Company in certain electric motor-car equipments and controllers furnished and delivered by that company to the defendant the Transit Equipment Company and placed by it on certain street railway cars of the defendant the Union Traction Company, of which the defendant Johnson is receiver in insolvency, appointed by the Court of Chancery, and of which the…

<p>On foreclosure. Heard on pleadings and proofs.</p>

On order to show cause why injunction should not issue. Heard on bill and affidavits, and affidavits on the part of the defendants.

On order to show cause why an injunction should not issue. Heard on bill, affidavits and exhibits on the part of the complainants, and affidavit on the part of the defendants.

<p>On bill of interpleader. Heard on pleadings and proofs taken in open court.</p>

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

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

<p>On bill, &c. Heard on bill, answer, replication and proofs taken orally.</p>

<p>On petition, &c., and exceptions to master’s report.</p>

<p>Where the owners of certain tracts of land joined in executing certain concurrent mortgages thereon, each of which contained a clause stipulating that, on payment of a certain specified sum on such several mortgages, a certain tract therein designated should be released from the lien thereof, the owner of such tract could discharge it from such lien by the payment of the stipulated amount at any time before the equity of redemption was foreclosed, notwithstanding the filing of a bill to foreclose by the holder of one of such mortgages ; but the money, with interest thereon to the date of payment and the costs to such time, should be paid into court.</p>

<p>1. An agreement giving a stepson the entire management of his stepmother’s estate, she to receive the profits and to make a will appointing him executor and make his wife sole legatee, to take effect after the decease of her son, in consideration of the stepson’s promise to take care of herself and her imhecile son, who has an expectancy of eleven years, is supported by a sufficient consideration.</p> <p>2. When she, being over eighty years of age, without counsel, and living with her stepson under the above agreement, afterwards transferred her entire estate to him — Meld, that the transfer was without consideration, and voidable for undue influence.</p>

On bill, answer and stated and agreed facts. The complainant files her bill of complaint in the nature of an interpleader, seeking to be protected from the conflicting claims of the defendants upon $745.78, which has been deposited in this court as the money remaining due under the terms of a contract made between the complainant and one Ellwood Thompson for the alteration of an old building and the erection of a new part of a building at Atlantic City.

<p>1. Where one who signs a note as principal is in fact a surety, and claims to be released because the holder has given to the real principal further time for payment, his remedy is by bill to restrain the collection of the note. He cannot in such a case set up his suretyship as a defence in an action at law on the note.</p> <p>2. Mere delay in enforcing a note without fraudulent connivance between the maker and payee does not release the surety. There must be a binding agreement on a new consideration for an extension.</p> <p>3. A bill for injunction to restrain enforcement of a note against a surety, ' because of an extension to the principal, should state facts from which the court can determine whether the alleged extension was a violation of the surety’s rights. Hence an averment which fails to give the time, circumstances and consideration of the extension agreement, is insufficient.</p> <p>4. Nor will a preliminary injunction be allowed where the complainant’s proofs denied by defendant state the conclusions of the witnesses that there had been an extension, without setting forth the circumstances from which the fact can be adjudged.</p>

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

<p>In the absence of special equities, such aa the purchase of the progeny without notice, the progeny of mortgaged animals follows the mortgage, although it is not expressly so stipulated therein.</p>

<p>On bill and affidavits, answer and affidavits and order to show cause.</p>

<p>1. On a bill for alimony, under section 20 of the Divorce act, there must be both abandonment and refusal of support to justify a decree.</p> <p>2. Where the husband unjustly and untruthfully accused his wife of unfaithfulness to him, and frequently told her that she might go to her own home if she did not like his proceedings, and finally struck her a blow in the face, in anger, and with such force as to injure her eyesight, she was justified in separating from him, and this was an abandonment by him under the statute.</p> <p>3. Where the husband has for years refused and failed to support his wife and child, and they have lived apart from him, and he definitely rejects, without cause, the wife’s personal appeal to him for a reunion, such a rejection is an abandonment by the husband of his wife, within the meaning of the statute.</p> <p>4. After suit brought because of such abandonment and refusal of support, a formal invitation by the husband to the wife to return to his house, unaccompanied by any evidence whatever of a purpose to treat her with justice and consideration, and while he yet continues to refuse even to speak to her, so that she fears to return to him, will not relieve him from the consequence of his abandonment and refusal to support her.</p>

<p>On bill for partition. Petition of Elizabeth Ahern et al.</p>

<p>1. Where at the meeting of a dental association an original essay was read, which was afterwards handed, with other essays, to a representative of a magazine of dental literature, but was not published, and a third person procured a copy from one connected with' the magazine and used extracts as an advertisement, without the authority or permission of the society — Held, that the manuscript was the exclusive property of the society and could not be used against its consent for such purpose.</p> <p>2 The burden of showing that a manuscript has been dedicated to the public is on the party so asserting.</p> <p>3. A report of the committee of an incorporated dental society, in the nature of an original essay on the care and preservation of the teeth, was read at the annual meeting of the society, which accepted it for the purpose of putting it on file tp later discuss it. — Held, that the mere fact that the report was read in the presence of auditors not excluded from the meeting without showing further that those auditors had not paid a fee as exhibitors or otherwise, or that the general public was “invited” to be present, does not constitute a dedication of the report to the public, so as to permit its publication by an exhibitor at the meeting, who had heard it read.</p>

<p>A wife’s desertion is not obstinate, within the statute providing that a divorce may be decreed for willful, continued and obstinate desertion for two years, unless persisted in against the effort or influence of the husband to bring it to an end. The amount of effort or concession required to be shown will vary with the particular circumstances of the case.</p>

<p>Where a tenant in common executed a contract for the sale of the property in her own name, and also, but without authority, in the name of her co-tenant, and the co-tenant repudiated the act, performance by the signing tenant may be specifically enforced as to her interest on payment of her share of the price.</p>

<p>1. When a mortgage, to secure the payment of the principal of certain bonds at a specified day and the interest thereon according to the provisions of coupons attached to the bonds, contains a covenant that at a fixed time after default in the payment of interest and after demand the principal shall become immediately due and the bonds and coupons are payable at a designated place, default in the payment of interest, within the meaning of that covenant, will result from the non-payment of the coupons, although not presented at the designated place and payment demanded.</p> <p>2. Qucere. Whether, if money had been provided at the designated place, so that coupons presented would have been paid, a court of equity would enforce the agreement that the principal should become due upon such default.</p>

He says this railroad company has laid an additional track, on the west side of its previous track, and immediately in front of his premises, which are on the west side of Seventh street, in such a manner as to interfere seriously with the approach to his premises.

<p>On appeal from a decree ad.vised by Vice-Chancellor .Reed, whose opinion is reported in 11 Dick. Ch. Rep. 634.</p>

<p>On appeal from a decree advised by Vice-Chancellor Reed, ■who delivered the following opinion :</p> <p>I am convinced that the attachment proceedings were instituted in New Jersey surreptitiously and for the purpose of getting a judgment against Mrs. Kirkhuff without her knowledge and therefore without a contest. While the action in the Philadelphia court was still pending and while the validity of this ■very account was in issue, the proceedings in New Jersey were commenced and consummated. No notice, I am satisfied, was ever sent by the attorney of Mr. Kerr to Mrs. Kirkhuff of the existence of the attachment suit. The suit was initiated with no purpose of extending any knowledge of its existence to her. Dr. Kerr knew, when he filed his affidavit to secure his writ of attachment, that his claim was contested and that it then was actually in suit in another jurisdiction.</p> <p>As to a part of the claim, namely, the $150, the evidence is strongly in the direction that it never had an existence; that the deed of the property was made for the repayment of the sum of $100 which his wife had borrowed, and if it was a claim, it was not his claim, but was a claim due to his wife.</p> <p>In respect to the other matters set up in the affidavit, they are all such as should be settled only by trial.</p> <p>The conversation between the doctor and Mr. Hood, and particularly the letter of July 5th to Dr. Kirkhuff, were calculated, and, I think, designed to lull Dr. Kirkhuff into a false belief that the set-off had been abandoned. But assuming all this, the difficulty I see in affording the complainant any relief is that she has not exercised that degree of vigilance which entitles her to come into this court and successfully ask its aid. The sale of the complainant’s land under the judgment in attachment occurred, as already stated, on June 17th, 1886. The bill, as already stated, was not filed until September 26th, 1893. Over seven years elapsed before any step was taken to undo the work of Dr. Kerr in causing the sale of her property. The excuse offered by the complainant is that she was not aware of the fact that the property had been sold away from her until the year 1892. Of course, if this be a fact, then she is not in laches, but I am unable to resist the conclusion that she is mistaken in this position. She says that she received information of the sale from Mr. Cowl, a minister, who .had visited Lavallette. Mr. Cowl visited Lavallette, according to the testimony of Mrs. Fleck, in the summer of 1887, as the guest of her father and mother. Mrs. Fleck says that she visited Lavallette every summer, and she never saw Mr. Cowl there at any other time than the one mentioned. If it be true that this was Mr. Cowl’s only visit, it was quite unlikely that he did not convey to the complainant, until five years later, the information that he had received upon that visit. But the most persuasive feature in the transaction is that Mrs. Kirkhuff seems never to have made any inquiry about the property after 1888 until about the time she filed her bill. She never visited Lavallette during that interval. She had already sued Dr. Kerr to recover the $200. She could not, therefore, have depended upon his friendship to look after the property without further request, and without any accounting during these seven years. Personally she paid no attention whatever to the property. Neither directly nor indirectly does she seem ever to have inquired whether it was rented, and, if so, who was receiving the rents. Whether it was standing empty, or was out of repair, whether the taxes were paid, she seems never to have inquired. This was certainly a remarkable course of conduct, if she still supposed she owned the property. It is only consistent with the fact that she had been informed that it had been sold away from her. If she was informed of that fact in 1887, and I think she was, then her delay in filing her bill exhibited such laches as to preclude her invoking the equitable assistance of this court at this late day. In the meantime, in this as in most instances of such delay, the property has been sold, a witness has died, and it is almost impossible to place the parties in statu quo.</p> <p>I will advise a decree for the defendants, but without costs.</p>

<p>On appeal by stockholders in the defendant corporation from an order advised by Vice-Chancellor Emery. (No opinion.)</p>

<p>Condonation of acts of adultery is no bar to a suit for divorce based upon such acts, where the pardoned party and the co-respondent have afterwards resumed their illicit intercourse.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 12 Dick. Ch. Rep. 53.</p>

The patents issued to defendant were two in number, one dated January 15th, 1889, the other January 21st, 1890. The alleged agreement for assignment was an oral one, and the final agreement, changing in some respects the original agreement, was made, as alleged in the bill and as appears by the complainant’s evidence, in the spring of 1891, and included a right to a three-sixteenths interest in the patents then obtained by Smith and in future improvements.

That document is dated January 31st, 1894, and provided for the payment of $75 a month, commencing with the following month, but not mentioning any period that it should continue. Payments under it were made and all pecuniary matters settled between the parties up to the-1st day of May, 1895. Six more payments, to October, 1895, inclusive, were made in full.

Horwitz absconded shortly after this bond was executed, indebted to complainant. Thereupon complainant sued upon the bond, and on January 25th, 1896, recovered judgment in the district court. The judgment was docketed in the court of common pleas. The present suit is brought to set aside a conveyance of land made on December 23d, 1895, by Samuel Litwin to one O’Hagan, and by O’Hagan to Litwin’s wife, Sophie.

<p>On appeal from a decree of the ordinary, whose opinion is reported in Stewart v. Stewart, 11 Dick. Ch. Rep. 761.</p>