Volume 6 — New Jersey Equity Reports

<p>When a Mortgage is foreclosed for default of payment of an instalment, the residue of the money not being due, the whole premises will not be directed to be sold unless a necessity for such a eourse exists; and when, in such case, a decree has been entered for the sale of the whole premises, the Court will, in its discretion, regulate the process of execution under the decree.</p> <p>A. borrowed money of B., on an agreement mating it payable in instalments, and gave bis notes for the payment of the instalments, and a Decree in this Court against A. was assigned to B. as collateral security for the payment of the notes. The decree assigned was general, that the mortgaged premises be sold to pay the whole sum mentioned in the Decree, and that a Fi Fa issue for the sale of so much of the mortgaged premises as would be sufficient to pay the said sum. The mortgaged premises were manifestly divisible. An instalment having become due, the Sheriff was about to sell under the Decree, to raise the whole sum. He was restrained by order of the Court. And, subsequently, on a motion to vacate the order, it was held that the decree could be used only so far, and at such times, as should be necessary to enforce the performance of the principal agreement, (the agreement on which the money was borrowed and the notes given,) and in the same way as if the Court had been asked to direct process of execution, on the Decree, in view of the principal agreement.</p> <p>The motion to vacate the order was denied, and a sale was directed of so much, of the mortgaged premises as would be sufficient to pay the instalment •which had become due.</p>

<p>What is not a desertion, under the act concerning divorces,</p> <p>A wife cannot convert a husband’s not contributing to the support of the family into a desertion on his part by removing to another place and taking board and refusing to receive him.</p>

<p>Alimony allowed tlie wife pending a suit by the husband for a divorce for alleged adultery, ou the deoúal by the wife, under oath, of the adultery.</p> <p>The answer of the wife should be put in without oath ; and the denial of the adultery should be introduced in the petition for alimony, and the petition be under oath.</p>

On petition for divorce from bed and board for cruel treatment, and stating that the husband designs quickly to leave the State without making any provision for the support of the Petitioner, and praying a ne exeat. The usual affidavit on petitions for divorce is subjoined to the petition, and was made Nov. 12, 1846. Annexed to the petition is an affidavit of one Romein, showing the intention of the husband to leave the Stat¿ and -abandon the petitioner.

<p>If when a payment is made by one to another to whom he is indebted on Bond and Mortgage and on other accounts, the debtor makes no special appropriation of the payment to the Bond and Mortgage, the creditor may apply it to the other account</p>

<p>When a 3íortgagor, after giving the Mortgage, sells to a third person a part of the mortgaged premises, the part remaining in the Mortgagor should, in a decree for sale, be directed to be sold first.</p> <p>On a foreclosure bill in such a case, a decree was taken in the general form for the sale of so much of the mortgaged premises as would be sufficient to pay the debt, and a jifa was issued to the Sheriff, commanding him, in the terms of the decree, to make sale.</p> <p>On the petition of one of the Defendants, a purchaser from the Mortgagor of a part of the premises, and the facts therein stated, an injunction was allowed, restraining the sheriff from selling the part which had been conveyed to this Defendant until the further order of the court; and it was subsequently directed that the part remaining in the 3Iortgagor should be first sold.</p>

The bill in this case, filed January 18, 1843, is for the foreclosure of a mortgage, dated March 18, 1830, given by A. Peck to Samuel Condit, to secure the payment of a promisory note, of the samo date, given by Peek to Condit, payable on demand, for $1500, with interest.

The hill, exhibited by Lewis F. R. Gregory, June 8, 1846, states that Ebenezer B. Gregory, by two deeds, one dated September 27, 1839, and the other dated November 6, 1839, sold and conveyed to the complainant several tracts of land in the township of Jefferson, county of Morris; and the township of West Milford, county of Passaic; three of which are described in the hill, one situated at New Foundland in the township of West Milford, county of Passaic, and the other two…

On the 26th January, 1844, John P. Outwater and others, stockholders of “The New Barbadoes Toll Bridge Company,” for themselves and all other the creditors and stockholders of the said company who should come in and seek relief by and contribute to the expense of the said suit, exhibited their bill, stating the incorporation of the said company, by an act passed February 16, 1816, and setting out the provisions of the act and of the several supplements thereto.

On the 12th April, 1844, Jacob Cummins exhibited his bill for tho foreclosure of a mortgage, dated April 1, 1841, executed by George Wire and his wife to him, to secure the payment of a bond of the same date, executed by Wire to him, and conditioned for the payment of $2000 on or before April 1, 1848, with interest from the date thereof. The mortgage was recorded on the 8th April, 1841.

<p>In May, 1817, J. purchased land of K. and paid part of the consideration money and gave K. a mortgage on the land for the residue. J. sold parts of the land, and K. released these parts from the mortgage.</p> <p>In August, 1821, judgments were recovered, in favor of other persons, against X, on which executions were issued and levied on that part of the mortgaged premises still held by X, “subject to prior incumbrance.”</p> <p>In October, 1822, pending a suit in this court by K. against J. for the foreclosure of the mortgage, J. and his wife re-conveyed that part of the mortgaged premises which he still held, and which had been levied on as aforesaid, to K., in paymentand discharge •of the mortgage, and K. took possession of the land; the registry of the mortgage, ¡however, was left uncancelled. Afterwards, the sheriff sold, under the said levy, and H. became the purchaser; H. when he so bought, having knowledge of the foregoing facts.</p> <p>Meld, that H. was not entitled to the land free from the mortgage debt; but that K. must be considered in the light of a mortgagee in possesion, and H. as only entitled to redeem on payment of the mortgage debt.</p> <p>It is of the utmost importance that defendants be held to the established rules for answering.</p> <p>It is not sufficient a for defendant to say he has no knowledge of a fact charged in the bill.</p>

<p>A deed in the form of bargain and sale, in consideration of $1 and of love and affection, to one son, his heirs and assigns forever; to have and to hold to the use and benefit of the said son and his wife and their heirs and assigns forever, is, unless a different intention can be made to appear, an advancement to the son.</p> <p>A father put one of his sons in possession of lands, which he occupied twenty years and then sold; and the father made the deed to the purchaser and the son received the consideration money.</p> <p>Held, to be an advancement.</p> <p>A father put a son in possession of a house and lot, which the son occupied during the father’s life, more than twenty years, and on which, with the knowkedge of the father, he made large improvements. If the value of the house and lot, without the improvements, be not equal to a share of the whole real estate to be divided, the house and lot may be set off, in the division, to the son, at its value without the improvements.</p> <p>If the value of the house and lot, without the improvements, be greater than a share, the house and lot may be set off to him and he be directed to pay so much as will equalize the shares.</p> <p>A child who has received an advancement cannot be compelled to pay any thing on account of it to the other children.</p>

In July, 1840, Samuel Lanning exhibited his hill, stating that be was lately seized in. fee of lands in tbe city of Camden, on wbicb be bad erected six three story dwelling bouses, at a cost of #12,000, independent of tbe value of tbe land; and that tbe Same will rent for tbe interest of #20,000. That be bad incumbered the premises by a mortgage of #3500; and that there •¶^§ ether bens thereon, by Judgments, exceeding #2000.

On the 4th of June, 1844, Joseph C. Ware, an infant of ten months old, ¡by Isaac Johnson 2d, his next friend, exhibited his MU, stating, that he is the grandson of Marmaduke Cook, late of Salem county, deceased, and the son of Mary Louisa, the daughter of his said deceased grandfather.

<p>H. C, bequeathed to W. L., since deceased, and A. S. R. and to the survivor of them, one-fourth part of her personal estate, in Trust to place the same at interest, and to pay the interest arising thereon, yearly, to H. H., so long as she shall live; and also, in trust, to pay to H. Hi so much of the principal as she shall, from time to time, by 'writing under her hand; attested by two credible witnesses, require of the said Trustees; and if she.shall leave children living at her death, or descendants of such children, then that what shall remain undisposed of of the said one-fourth part, with its accumulated interest, shall belong to and vest in her children, to be paid to them at 21 years of age respectively; with further provisions in case she. shall die without leaving children or descendants of children. H. H. died without leaving any child or any descendant, of any child; and leaving a will, by which, after giving a number of pecuniary legacies, she gives the residue of her estate, real and personal, to &c.</p> <p>One question decided in the cause was whether H. H. had withdrawn from the trust any of the fourth part bequeathed to her, in the mode directed by the will, or by any act which could be considered equivalent to it.</p> <p>'The court may aid a defective execution of a power; but will not supply the execution where none has been attempted or intended.</p> <p>'Where the circumstances are so equivocal as to leave the mind in doubt whether an execution of a power was at al! intended, the court should not interpose. An intention to execute the power should clearly appear.</p> <p>"The executors of the will of H. H., having obtained possession of securities belonging to the trust fund, were ordered to restore them to the trustee.</p> <p>' The claim made by the bill under the words “accumulated interest” in the will was denied-; the court holding the words to apply only to the interest remaining unpaid to H. H. at her death.</p> <p>'Where securities for money are made payable to two persons, the surviving payee or obligee is entitled to the custody of them and to collect the money on them; and the representatives of the deceased co-payee or co-obligee are not at liberty to take half of them, in amount, from his possession.</p>

On the 18th May, 1846, Schermier gaye a mortgage to Ballentine for fTOO. He had'given several prior mortgages on the same premises. Several judgments had, also, been recovered against him; some prior and some subsequent to the mortgage to Ballentine. One of the prior mortgagees, the complainant in this case, filed a hill for foreclosure and sale of the premises, malring all the mortgagees and judgment creditors parties defendants.

This is an appeal from a decree of the Orphan’s Court of the county-of Salem, directing the division of certain lands devised by the will of Stephen Reeves, deceased, among the devisees thereof.

<p>1. When a father devises an estate to a son and daughters, the son knowing its value, and the daughters not knowing it, the son, when he enters into a treaty with the daughters for a different settlement and disposition of the estate among them, must apprise the daughters of its value, of their rights, and of every circumstance necessary to enable them to treat upon terms of equality; and concealment, misrepresentation, or any conduct on his part, calculated to put them at a disadvantage in the negotiation, will be fatal to the contract in a court of equity.</p> <p>2. Courts of equity look with favorable eye on agreements made to pre» serve and maintain the peace of families, but only so far as such agreements are fairly obtained. If obtained by concealment and misrepresentation as to the value of the estate, courts of equity will not sustain them.</p> <p>3. Before a party can be examined as a witness, an order must be obtained for that purpose.</p>

<p>The will first gave A. P. W. the sum of $10,000: and then gave a number of pecuniary legacies, and certain specific legacies. Then followed this clause: “My bank stock I wish to make a part of A. P. W.’s legacy, as they will give her less trouble in collecting.” The will then gave certain other specific legacies ; and gave all the remainder of his property to four cousins. Then followed this clause: “I wish that the house I have lately purchased of C. M. C., valued at $4,000, be a part of my dear aunt’s (A. P. W.’s) legacy; and that in the division of her portion, my Trenton Bank (stock) be calculated at $40 per share, and the Easton Bank (stock) at $30 per share.” The personal estate was insufficient to pay the pecuniary legacies in full.</p> <p>Held, that A. P. W. took the house and lot and the bank stock, at the valuations thereof, respectively, given by the will, without being subject to abatement.</p>

<p>Ferdinand Shibla died March 25, 1827, leaving a will, by which he gave, devised and bequeathed to his wife, Deborah, the use and enjoyment of all his estate, real and personal, during her natural life; and directed that after her decease, all the rest and residue of his estate, both real and personal, should be sold, and the proceeds thereof, together with all other estate he might be entitled to on debts to be received or otherwise, should be divided among certain persons in the will named; and appointed his said wife and John I. Little executors of his will. The widow alone proved the will and acted as executor. The inventory of the personal estate of the testator amounted to $1,804 40: it was not exhibited in the cause; and it did not appear of what the personal property consisted. On the 11th of February, 1840, the widow intermarried with John Ely.</p> <p>The bill charges, that he, in right of his wife, possessed himself of the whole of the said real and personal estate of the testator. After the marriage, Ely gave to his wife, the said Deborah, the following receipts or certificates; one, dated April 1, 1830, by which he acknowledges to have received from her $100, “the money of her former husband ;” one dated May 27, 1830, for $53, “being moneys of her former husband;” one dated April 8, 1831, for $400, “being moneys of her former husband, which said moneys is to be paid to her for her said use;” one dated February 23, 1832, as follows: “I have in keeping of my wife, money of her former husband, $212.”</p> <p>John Ely died October 20, 1830, intestate, leaving the said Deborah him surviving.</p> <p>Milton Ely, the defendant, is the surviving administrator of the -said John Ely, deceased. Deborah Ely died, intestate, August 10, 1842. The complainants are the administrators de bonis non, with the will of Ferdinand Shibla annexed.</p> <p>The bill prays that the defendant Milton Ely, surviving administrator of John Ely, deceased, may be decreed to account for the personal estate of the testator Ferdinand Shibla, which came to the possession of said John Ely and Deborah his wife, or either of them, and for the rents and profits of the said real estate.</p> <p>The answer says, that the defendant is informed and believes, that the money for which the said certificates were given, together with about $40 included in a note given by Jeremiah Newman to the said John Ely, by the advice and consent of the said Deborah, is the whole amount of monies which the said John Ely received of the estate of the said testator F. Shibla; for all which sums he accounted to the said Deborah, as the defendant is informed and believes.</p> <p>The answer denies that John Ely, from his marriage to his death, or at any time during his life, occupied the real estate of the said testator, or received the rents and profits thereof and converted the same to his own use. The defendant submits to act in the premises under the direction and indemnity of the court.</p> <p>The answer sets up the statute of limitations; and also that there is a defence at law.</p> <p>By a supplemental answer, the defendant says that, under an order of the Orphan’s Court of Monmouth, he has sold all the estate of John Ely, deceased, real and personal; that among the claims presented to him against the estate of John Ely, deceased, is the demand of the complainants in this cause; and that the settlement of this claim, as well as others, is now pending’, undetermined in said Orphan’s Court; and that he is satisfied, and therefore charges, that the estate of said John Ely, deceased, is insolvent.</p>

<p>The bill states that on the 24th of August, 1840, Jacob Al-yea and Thomas V. Johnson became indebted to Andrew B. Haxton, of New York, in $2,564 26, and to secure the same, gave to Haxton their bond of that date, conditioned for the payment of the said sum in two years, with interest payable semiannually i and that Alyea, to secure the payment of the said money and interest, gave a mortgage, of the same date, to Haxton, of certain real estate described in the bill, conditioned that if the said Alyea and Johnson should pay the said sum of money and interest according to the condition of the said bond, the mortgage should be void. That the mortgage was acknowledged on the 19th of October, 1840, and recorded the next day. That 'On the 22d of May, 1845, Haxton, in consideration of $1, to Mm paid by the complainants, by deed of assignment assigned the said bond and mortgage to the complainants. That the interest has been paid up to September 9, 1844, and that $ 1,000 of the principal has been paid; and that the residue of the said sum remains due.</p> <p>The bill is for the foreclosure of tlie mortgage and sale of the premises.</p> <p>Alyea, alone is made defendant.</p> <p>Alyea, by his answer, admits, that on the 24th of August, 1840, ho and Johnson became jointly indebted to Haxton in the said sum, and gave their bond as stated in the bill; and admits that he gave the mortgage mentioned in the bill, and that the mortgage was given by him as well for the benefit of Johnson as for his benefit, and that it was given at the special instance and request of Johnson. He admits the payments mentioned in the bill, but says that they were made by him solely, no part thereof having been paid or the money furnished by Johnson. He admits that Haxton may, in form, have executed an assignment of the bond and mortgage to the complainants, for the nominal consideration of $1; but be denies that it was made for proper and lawful purposes, and that the complainants were the lawful and bona fide purchasers of the mortgage for a valuable and good consideration; and says, that the assignment was a fraudulent device of Johnson and the complainants, for the purpose of defrauding him and depriving him of his legal and equitable rights.</p> <p>Ho says, that at the time when the assignment bears date, Haxton received from Johnson, one of the joint obligors in the bond, the full amount of the balance due thereon, and that the same was paid off and liquidated and fully satisfied; and that if the bond and mortgage were assigned, they were not assigned to the complainants as bona fide purchasers, and not until after the whole amount of money due thereon had been paid, namely, the amount herein before stated as paid by the defendant, and the balance by Johnson, the other obligor. That he is informed and believes, that in the transfer of the said bond and mortgage, Haxton did not know the complainants; and that the assignment was procured and dictated by Johnson, and was made by Haxton on Ms receiving from Johnson, one of the obligors, ft© full amount due thereon 5 and that the money was received by Haxton in payment, and not as a consideration for the transfer to the complainants. That there is nothing due on the bond and mortgage ; the same having been paid off; and that they ought, in equity, to he delivered up and cancelled.</p> <p>Testimony was taken.</p>

Tn this case, on the filing of the bill, which is a bill for the specific performance of an agreement to sell a tract of timber land,, of which the complainants had gone into possession under the agreement to buy it, an injunction bad been granted to restrain the prosecution of an ejectment brought' by a grantee of the defendants who entered into the agreement to sell, to recover possession of the land.

<p>C. H. received a certificate for a pension for five years, commencing from March 4, 1836, at the rale of $310 a year. E. C. C. acted for her in procuring the pension; but, for reasons stated, the power of Attorney to draw the pension was given to J. C.; and J. C., about the 6th March, 1839, received, for the pension money then due, $931 98. C. H. had lived a number of years with J. C., in his family. On the 8th March, 1839, C. H. signed a receipt by which she acknowledged to have received from E. C. C. $931 98, in full of her pension up to March 4, 1839, obtained by him for her, excepting $430 which she had agreed to give Mm for his services in obtaining the pension for her and paying the expenses. C. H. died Feb. 18, 1841, having continued to live with J. C. until her death, leaving a will, dated Feb. 10,1841, by which she gave to her daughter, C. V., “all her property and possession, whether real or personal, and also the amount of her pension which might be due at her death,” and appointed E. C. C. executor of her will.</p> <p>Held, first, under the circumstances, that the $931 98, received in March, 1839, eould not be considered as belonging to C. H. at the date of the will. Second, that E. C. C. was entitled to retain the $430; and that-it was not a case within the act of Congress in reference to agreements before pensions are obtained.</p> <p>Matter set up in avoidance must be proved.</p>

<p>A tenant under a written lease for a year, after the expiration 0/ the year, filed a bill praying the specific performance of an alleged parol agreement by the landlord for a lease for a second year, and an injunction restraining proceedings at law, instituted by the landlord, to turn him out of possession. The bill stated that the complainant could malte no proof, at law, of the parol agreement, and prayed a discovery of it.</p> <p>The answer denied the alleged parol agreement.</p> <p>The Injunction was dissolved, and the pill dismissed.</p> <p>If the answer to a bill for discovery and for injunction against proceedings at law denies the matters of which discovery is sought, and there is no other ground of equity jurisdiction in the case, the injunction will be dissolved, and the bill dismissed.</p>

<p>A bond and a mortgage showing ou its face that it was given to secure the payment, of the bond wore executed. Tim mortgage came into the possession of the person named therein as mortgagee, he having given no consideration. The bond was never delivered. The person named as mortgagee assigned the mortgage to one who testified that he advanced no money on the faith of it; and he assigned it to the complainant ; who, on taking the assignment of the mortgage, gave a writing under his hand and seal, that, in consideration of the assignment, he agreed to pay certain notes drawn and endorsed by the parson named as mortgagee, and lo cancel cartain claims then in his hands against the person named as mortgagee.</p> <p>Under the pleadings and proofs, the bill to foreclose the mortgage was dismissed.</p> <p>A mortgage purporting to secure a bond is not good without the bond, unless it be made to appear that the person named as mortgagee is entitled to the possession of the bond And a person coming into possession of the mortgage hy assignment from him who is named as mortgagee, utanthmno bettor position.</p>

On the 13th January, 1840, Goold Hoyt filed his bill stating that, on the 15th December, 1836, “The President and Directors of the Bridgewater Copper Mining Company,” being indebted to him in… Held: at such place as may be designated by the president, whenever in his judgment the same may be deemed necessary, or whenever a requisition shall be made on him by any two of the directors to call the same.

The hill states, that on the 15th December, 1835, the complainant and defendant entered into partnership in the India Rubber manufacturing business; each to receive half the net profits, and bear half the losses.

<p>Injunction allowed, and Receiver appointed, on bill by an execution creditor.</p> <p>An answer of a defendant, to a bill for discovery &c. by an execution creditor, that he has no property of any kind will not prevent an order referring it to a Master to ap" point a Receiver and directing the defendant to deliver to such Receiver his property and effects, on oath before the Master.</p>

The bill filed May 17, 1847, is exhibited by Henry Miller,. Held: on the 5th February 1844, and a new incorporation formed, under the said act of June 12/1799, and Stephen Mulford, since deceased, John W. Challiss, William L. Seagrave, Henry Freas, William Johnson, Isaac English and John N.^Cooper were elected trustees of said new corporation; who took and subscribed the oaths &c. That the said…

Jacob I. Hopper presented a petition to the Ordinary, setting forth that John I. Hopper died siezed of lands situate in the counties of Bergen and Hudson, leaving Maria Hopper, his widr ow, entitled to dower therein; and that he, the petitioner, is one of the heirs-at-law and devisees; and praying the appointment of commissioners to assign to the said widow her dower in the lands whereof the testator, the said John I. Hopper, died seized.

The bill, filed September 8, 1845, states that John I. Tuers, late of the county of Bergen, deceased, in his lifetime, and on or about the first day of May, 1823, and for more than twenty years previous thereto, was seized in fee-simple of a certain farm or tract of land, whereon he resided, in the township of Franklin, in the county of Bergen — bounded, &e. (describing it) containing one hundred and eighteen acres, more or less ; that said John I. Tuers, on or about the…

The bill in this case, filed March 26, 1847, by John D. Hager, for himself and in behalf of all other stockholders of ciThe New Brunswick Steamboat and Canal Transportation Company” who shall come in… Held: either at a special election or an ensuing regular annual election; and a special election may at any time be held in such manner and form and upon such notice as the by-laws of the company may for that purpose prescribe.

<p>On bill by a mortgagee against a mortgagor, making other mortgagees, and judgment creditors of the mortgagor parties defendants, a decree for sale was made, to satisfy the incumbrances, according to their priorities. The property was sold under the '"decree. Afterwards, the mortgagee last in priority, the proceeds of the sale under the decree not being sufficient to pay any part of his mortgage, bought the property from the purchaser under the decree; and filed a bill against the mortgagor, who still remained in possession, to restrain him from committing waste. The injunction was allowed; and a motion to dissolve it was denied.</p> <p>After sale of mortgage premises under decree and execution, the mortgagor, in possession, will ’oc restrained from committing waste.</p>

Jacob Young died, June 2, 1843, leaving a will, dated July. 1, 1840, of which he appointed Samuel Stewart, Philip Fine, Edward Hunt and his son Abraham P. Young, the complainant, executors. Fine died in May, 1845.

<p>Notice of trial is a breach of an injunction staying proceedings in an action at law.</p> <p>On bill by one in possession of lane}, for the specific performance of an alleged agreement by the defendant to purchase the land at sheriff’s sale, on execution against the-complainant, and take a raorlgage for the amount advanced by him to pay incumbrances, an injunction to restrain proceedings to recover possession from the complainant will not be retained until the hearing, if the amount due is large in proportion to the value of the land, and the responsibility of the complainant is comparatively limited.</p>

<p>On a bill by a second mortgagee, nothing more than the equity of redemption mortgaged to him can be decreed to be sold, unless the first mortgagee comes in with his mortgage, and thereby consents that a decree shall be made for the sale of the property to pay his mortgage also.</p>

<p>After 23 years from the taking of a decree pro confesso on an original bill against all the defendants therein except one, and 22 years after that one had answered the original bill, no step having been taken in the mean time in the original suit, a supplemental bill was filed against some of the defendants to the original bill, and against other persons who had become assignees of others of said defendents since the decree pro confesso was taken.</p> <p>A demurrer to the supplemental bill was allowed.</p>

<p>In May, 1837, A., being about to raise his dam to a height that would cause the overflow of B.’s land, agreed to buy B.’s land, and to pay for it on the 1st of April, 1838* the day fixed for the delivery of the deed. On the same day, a further agreement was made between them, that as a compensation for the damages B. might sustain until the completion of the agreement to buy, B. should occupy and use certain lands of A. In the fall of 1837, A. raised his dam, and B. took possession of the said lands of A. In October, 1838, B. tendered the deed ; but A. did not pay, and the deed was not delivered. In 1844, B. filed his bill, praying that A. might be decreed to pay by a day to be fixed, and that, on his failing to do so, the said agreement might be cancelled, and A. be directed to lower his dam. An order was made that A. pay by a day fixed or that the agreement be cancelled. The order prayed as to lowering the dam was denied.</p> <p>A Court of Equity may decree the cancellation of an instrnment though it has become a nullity, on the ground that its existence may be a cloud on a party’s title, or may subject him to litigation at a future period when the facts may have become involved in obscurity.</p>

<p>The Statutes of New Jersey limiting actions for land do not apply to dower.</p>

<p>Re-taxation of costa.</p>

<p>Insufficient evidence of Adultery on Bill for Divorce.</p>

On the 28d of September, 1846, the executors of the will of Jacob H. Voorhees, deceased, exhibited their bill, stating, that Joseph Voorhees, deceased, late of Monmoth county, died on the 14th of September, 1845, leaving a will, dated November 15, 1888, by which he ordered his executors to sell all his estate, real and personal, as soon after his death as they might think proper; and directed them to disburse the money arising from the sale and all other monies that might…

On the 21st of October, 1845, Sarah Smith, of Trenton, widow of Owen Smith, deceased, exhibited her bill, stating, that her said late husband, previous to his marriage with her, was seized of three houses and lots in Trenton, and one other tract of land, of about fifty six acres, in the township of Hamilton, in the county of Mercer.

<p>An improvident agreement, made for a consideration grossly inadequate, by one of great imbecility of mind, with another whose position in relation to him conferred undue influence and control Over him, will be set aside.</p>

The petition filed February 4, 1846, states, that the petitioner and the defendant were married February 27, 1813, at Nimsfield, Gloucestershire, Great Britain. That after their marriage they came to America, and settled at Belleville, in the county of Essex, in this State; and that from that place they removed to the city of New York, in the year 1837.

<p>A mortgagee by taking possession assumes the duty of treating the property as a provident owner would treat it.</p> <p>He is bouhd to keep it in good ordinary repair; and if it be a farm he is bound to good ordinary husbandry.</p> <p>A mortgagee of a farm, having taken possession thereof, must show reasonable diligence to procure a tenant, or he will not be relieved from the charge of rent on the ground that the farm was not cultivated. And if he cannot find a tenant for the buildings and the farm, he should cause the farm to be tilled.</p> <p>Annual rents allowed against a mortgagee in possession. when the annual rents and profits and wood and .timber cut from the premises exceeded the interest and expenses.</p>

<p>M. A. devised and bequeathed all the rest and residue of her estate, real, personal or mixed, to E. R. A., to be by her possessed, enjoyed and occupied to her and her heirs forever; but if she should die without heirs and intestate, then that all the estate above devised to her shall vest in her brother Charles M. Araistrong and sister Margaret Salter and their heirs, to he equally divided between them, share and share alike.</p> <p>Held, that E. R, A. took an estate in fee simple in the lands, and an absolute property in the personal estate; that the words “without heirs and intestate” imply a power of disposition, and are inconsistent with and avoid the limitation over. By the Supreme Court.</p>

<p>The bill stated that, in January, 1842, II. V. and J. V., In consideration of $30,000, conveyed to the complainant a farm; that the agreement for the sale had been concluded some days prior to the execution of the deed; that the deed was recorded a few days alter its delivery. That at the delivery of the deed the complainant was ignorant of the existence of a judgment in favor of the defendant in the bill against the said H. V. and J. V., or that the defendant held a judgment bond against them. That the object of H. V. and J. V., in selling said farm, was to raise money to pay their creditors, of whom the defendant was one; and that the said money was duly applied in the payment of their debts. That during the negotiation for the said purchase by the complainant the defendant was acquainted with the whole matter, and was told by H. V. of the intended sale to the complainant, and advised the making thereof, and knew that the complainant was buying the property supposing it to be clear of any judgment in his favor; but that the defendant, after said agreement of purchase and sale had been made, and on the 19th of January, 1842, had a judgment entered up on a judgment bond he held against said H. "V. and J. V. That the said H, V. and J. V. had ample real estate remaining in them after the said sale to satisfy the defendant’s judgment, but that he releesed the same, or large portions thereof, from die lien of said judgment. That the defendant, before the said sale, held two judgments against the said II. V. arid .f. V. which had been assigned to him, and that, on the 7th December, 1842, they transferred to him a draft for $6,000, drawn upon and accepted by certain persons in Kentucky, as collateral security for the payment of his said two last mentioned judgments, amounting to about $5,000, the defendant agreeing, under hand and seal, to apply what he should receive on the said draft, firs?, to the payment of his said two lasl mentioned judgments, and to account for the surplus. That the defendant received on said draft $5,287 52, and did not apply the same on his said two judgments, but raised the amount of said judgments by sales on execution, and now insists on appropriating said money to judgments entered since the said deed to the complainant and which the defendant holds against the said H. V. and J. V., leaving older judgments unpaid and thereby charging the complainant’s farm wiih the amount thereof. And that the defendant has caused an execution issued on his said judgment of January 19, 1842, to be levied upon the complainant’s said farm. The bill prayed relief, and an injunction restraining sale on the last mentioned execution. The injunction was allowed.</p> <p>An answer was put in, and a motion thereupon made to dissolve the injunction. The injunction was retained until the hearing.</p>

<p>B. H., by his will, directed that when his youngest daughter should attain 18 the Executors should sell a certain farm, and place the proceeds at interest, to be equally divided among his daughters and be paid to them when they, respectively, attained 18, provided that it should be in the discretion of his Executors or the survivor of them to place the same in the hands of trustees for the use of his daughters, or either of them, to be paid to them, or the interest paid to them, free from the debts or control of any husband. J. B. A. married a daughter who died leaving a daughter by him. Afterwards, the Executors sold the farm; and J, B. A. received from them §1,000 of the proceeds, and gave his bond and mortgage to the Executors. Afterwards J. B. A. married another daughter; and, also, obtained letters of guardianship of the estate of his daughter by his first wife. On bill to foreclose the mortgage, the Court refused to allow the shares of J. B. A.’s daughter and wife of the proceeds of the farm to be set off against the mortgage.</p>

In July, 1846, Stephen R. Parkhurst exhibited his hill, stating, that on the 1st of May, 1845, he, being the original inventor of a certain machine, (described in the bill,) obtained letters patent, under the seal of the patent office of the United States, granting to Mm, Ms heirs, administrators or assigns, for 14 years from that day, the exclusive right of constructing, using and vending certain new improvements in the construction, arrangement and combination of…

This case is reported ante, page 482. Appeal from the decree of the Chancellor. The respondent filed, July, 1846, her bill of complaint against the appellant in which she sought to recover dower in certain, lands in his possession.

<p>This case, and the decision of the Chancellor thereupon, is reported ante, page 828.</p>

<p>Sufficient evidence of Adultery on bill for Divorce.</p>

<p>This case is reported ante, page 277.</p>

<p>A devise to E. R. of all the residue of Testatrix’s estate, real, personal and mixed, “to he by her possessed, enjoyed and occupied, to her, her heirs and assigns forever,” with the proviso “if my said daughter E. R. should die without heirs and intestate” then all the devised estate to vest in her son C. and daughter M. and their heirs, creates a life estate only in E. R., in both real and personal estate, with power of disposal by will and not by deed.</p> <p>Note. Chancellor EL considering the questions involved in this case proper for the Law Courts to decide, and having given an opinion on the will when at the bar, referred it to the Supreme Court; and gave no opinion in the Court of Chancery, or the Court of Errors and Appeals. ' Reporter.</p>