Volume 66 — New Jersey Equity Reports

On bill for a legacy under a clause in the will of Joseph G. Angle, which is in the following words : “After tlie death of my said wife, Rachel G-. Angle, I give and bequeath unto ray son David 0. Angle the farm where he now resides for him to use and occupy during the term of his natural life. I do further direct that my said son David 0.

<p>1. When, upon an application for leave to traverse an inquisition of lunacy, an issue is directed to be tried at law, a motion for a new trial of the issue is to be made before the chancellor, and not in the supreme court.</p> <p>2. Upon the trial of an issue directed to try whether E. A. C. was and is of unsound mind, so that she is not capable of the government of herself, her lands, &c., the evidence was restricted by a stipulation of counsel to the period covered by the inquisition. — Held, that there should be a retrial.</p>

On demurrer to bill. The bill of complaint was filed by John I. Weller and Julius Lichtenstein as partners. It alleges that both complainants are licensed attorneys-at-law, and that John I. Weller is a licensed counsellor-at-law of this state. The bill states that in November, 1902, John Meifert, while a passenger on one of the cars of the defendant company, was injured by its negligence, whereby a cause of action accrued to him to recover damages for such injuries.

<p>A testamentary clause, whereby a testatrix willed and directed that certain of the real estate of which she died seized should be sold and conveyed by her executrix “within five years from my decease,” and the proceeds divided between two beneficiaries — Held, to be merely directory in respect to the limit of time for sale, and further held that the executrix retained power of sale after the expiration of the limited period.</p>

Oil motion for injunction and receiver. Heard on bill and affidavits and answering affidavits on the part of John A. Sinclair.

<p>1. Permission by a city to a private individual to occupy a public street with a railroad switch, to be used for his private business, is void, and a provision for notice by the city before its removal cannot be enforced.</p> <p>2. Gen. Stat. p. 26S9 ¶ 221 empowers municipal authorities to make such contracts with railroad companies as shall secure greater safety to persons and property, or 'facilitate other than grade crossings. Under this statute a city contracted with a railroad company (whose charter bound it to keep its highway crossings fit for safe and convenient use, and gave it power to elevate its tracks), to remove certain tracks at a grade crossing, substituting therefor an elevated crossing. — Held, that the obligation thus imposed on the company was paramount to the conflicting one existing by virtue of a prior contract with a private individual to maintain a switch and siding, so that the later contract would not be specifically enforced in equity in any manner, but such individual would be remitted to his legal remedies.</p> <p>3. Where all the facts upon which the validity of a contract, specific performance of which is sought by injunction, appear on the application for a preliminary writ, and the question involved is one purely of the application of legal and equitable principles, the fact of loss and inconvenience to complainants will not justify a preliminary injunction until the case can be finally heard, it appearing that on the admitted facts relief must be denied at the final hearing.</p>

<p>1. A settlement by a father, after a second marriage, on the children of the first marriage, ■ covering his homestead and half his personal property, executed voluntarily and without any solicitation from them, will be sustained, though containing no power of revocation, where it was not unreasonable in amount, and was executed with advice of his own counsel, when he was steadily' accumulating money and was entirely -competent to act.</p> <p>2. A subsequent gift by the father to his children of his entire property remaining after the previous transfers to them, and constituting the balance of his earnings, made without any advice, when his'second wife, who had separated from him, was threatening him with legal proceedings for support, and containing no power of revocation, and ■without any provision for his future support, may -be revoked, though, executed without any undue influence of the children.</p> <p>3. Where a father has executed a gift of property to his children, and they have' received the income, relying on the gift of it, and have ex-. pended it mainly as the father directed, on the revocation of the gift the income cannot be recovered.</p> <p>4. A father attempting to set aside an unreasonable settlement of his property on his children, executed in 1881, is not precluded by delay, where he was ignorant of his rights until 1900, and has not by -his conduct or'delay waived his right to revoke or plqced his children in a situation where it would be unreasonable to assert his claim.</p>

<p>1. Where a father gave his daughter money to be held in trust and invested by her, and she and her husband purchased a farm in the name of her husband, with the intention of investing the fund, the husband knowing that the money was in his wife’s hands for that purpose, the farm, while still in the name of the husband, is subject to a lien in favor of the father for the amount of the fund.</p> <p>2. Where a daughter was trustee of money of her father, with direction to invest it, and she did invest it, in good faith, in a farm purchased in the name of her husband, the father knowing of and being satisfied with the investment, she'is not personally liable in a suit to ■enforce the trust, the farm not having passed beyond the reach of the father as cestui que tmst.</p>

<p>1. Evidence act (P. L. of 1900 p. SOS § J¡) excludes testimony by a party to a civil action, as to any transaction with or statement by any testator or intestate represented in the a'ction, where any party sues or is sued in a representative capacity. The payee in a note given by a testatrix, whose will charged her debts on her lands, petitioned that the proceeds oí land sold in partition proceedings between devisees be applied to the payment of her' note. — Held, that the testimony of the petitioner as to the execution of the note and its consideration was not incompetent, the devisees not being sued in a representative capacity within the statute, as construed and applied by the decisions. Cases examined.</p> <p>2. Gen. 8tat. p. 298J¡ 1i 20, provides that in all suits in chancery for partition or sale of lands, where the personal estate of the ancestor is insufficient to pay his debts, it shall be lawful for the chancellor to direct the lands to- be sold free from the lien of such debts, and to make an order touching the disposition of the proceeds of sale, as may be necessary for the ascertainment and payment of such deficiency thereout, before the distribution of the fund. — Held, that where lands of a decedent, which were charged with the payment of a debt, were sold free from the debt by a decree in partition, the lien or charge of the creditor, who was party to the suit as devisee, might be enforced against the proceeds of sale.</p> <p>3. Where a will causes a debt to be a charge on the lands of testator, there is an equitable estate in lands created, and the debt not being barred by limitations at testator’s death, it may be enforced within twenty years from his death against the lands, as if it were a legal estate given by the will.</p>

<p>1. Where a building contract, giving the owners the right to domplete the work on abandonment by the contractor, is abandoned by the contractor after the work is partially done, and the building is completed by his sureties under agreement with the owners, the work done by the sureties is neither for the owners nor the contractor, but to relieve themselves as cheaply as possible under their obligation as sureties.</p> <p>2. The sureties are entitled to the unpaid portion of the contract price, including, as far as necessary to reimburse them for their necessary outlay, an indemnity fund retained by the owners as the work progresses, for their security in the contingency that the work should be abandoned, and they should be required to complete it themselves.</p> <p>3. The right of the sureties is superior to the claims of materialmen and laborers for work done for, and material furnished to, the contractor, as to the indemnity fund in the hands of the owners, which they retained pursuant to the terms of the contract, to be used by them in the contingency that the contractor should not complete the work.</p> <p>4. The claims of materialmen and laborers having claims against the contractor reach only such moneys as were due at the time of the several demands and notices, or thereafter becoming due to the contractor.</p> <p>5. The amount of the contract price recoverable by the. sureties includes claims for labor done and material furnished after the contractor had abandoned the work, while the sureties were completing it.</p> <p>G. Sureties on a contractor’s bond who, with the permission of the owner, had finished a house abandoned by the contractor, are entitled to be repaid out of the moneys which thus became due upon the contract in preference to materialmen and laborers who had served notices upon the owner when there was still nothing due and unpaid. This applies to a percentage of the contract price retained by the owner as indemnity till completion of the building.</p>

<p>1. A creditor’s bill need not allege that defendant has no other property liable to satisfy complainant’s judgment, if it shows that complainant has exhausted his legal remedy.</p> <p>2. A creditor’s bill is insufficient in not showing that complainant has exhausted his remedy at law, the return to the execution merely showing there was no personal property, and the bill failing to show there is no other property the legal title to which is in defendant.</p> <p>3. A Us pendens filed in a purely personal action at law gives no notice of a claim against property.</p> <p>'■ 4. A. ei-eclitoi'’s bill alleging that defendant B., to prevent complainant from collecting her claim against Mm, and to defraud her, conveyed his land to H., who conveyed to B., and that B. then conveyed to J., ■on the expressed consideration of ifl and marriage; that J. therefore married B.; that B. and J. then, in further execution of said fraudulent design, conveyed the land to G.; that no consideration was paid for any ■of the conveyances; and that, when the conveyances were made, the parties thereto knew of B.’s indebtedness to complainant — charges actual fraud of J. in the transaction.</p>

<p>F., who owned a dwelling and a store, in which he had for a long time conducted a business, and whose stock seemed to be large, banked with defendant, all his transactions being with .1., its cashier. Among notes discounted was one for $4,000 made by F., and after several years reduced to $3,485. Besides this were several others, amounting to $2,580, some of which were overdue from two days to two or three months. F. had no balance in bank against which they could be charged. J., becoming suspicious that some of the notes were forged, went tu S., brother-in-law of F., and found this to be true, and intimated that F. was in danger because of this. Shortly after F., at his home in the presence oí S., paid ,JT. $2,580 and' took up the forged notes. I-Ie had obtained the money by turning over all his property to S. for $3,000. There was no testimony that J. knew at the time how the money had been raised, though it was intimated that S. had arranged for it. A statement which ,T. had received from F. showed solvency. — -Held, that J. did not have “reasonable cause to believe” that the payment, made within four months of the filing of the petition in bankruptcy against F., was intended to give the bank a preference so as to make it void under Bankruptcy act (1898 860b), as amended by act of February 5th, 1903, 32 8tat. 199 ch•. J/87 (O. 8. Comp. 81at. Supp. .1903 p. J/16), reasonable cause to “suspect” not being enough.</p>

<p>1. In the settlement of an insolvent partnership, claims of individual partners cannot be recognized until other claimants are paid in full.</p> <p>2. Where a member of an insolvent partnership conveyed property to his wife which was rented to the firm, and the conveyance was in fraud of creditors, the wife was a mere trustee in equity, the title, in respect to his creditors, remaining- in him, and she was not entitled to payment of rent while firm debts remained unpaid.</p> <p>3. Where a creditor of a firm who had obtained judgment on his claim obtained a decree against the -wife of one of the partners setting aside as fraudulent a deed to her of her husband’s property, under which decree the property was sold, but not for a sum sufficient to satisfy-the claim, on insolvency of the firm and distribution of its assets in the hands of a receiver, such creditor was entitled to share ratably on the full amount of his claim, without deducting the amount of the sale, unless the dividends would amount to more than the balance due him after applying the sum received from the sale.</p>

<p>On bill for injunction.</p>

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

<p>1. Where third parties advance money to a corporation to pay interest coupons, which, by the terms of the mortgage securing the coupons and bonds to which they are attached, have preference over the bonds, and receive the coupons in return for their advances in the belief that they succeed to the rights of the bondholders in the coupons by purchase, the bondholders may, nevertheless, insist on their mortgage lien free from the purchased coupons, unless they understood or had reason to inquire, that the third parties were buying the coupons instead of the corporation paying them.</p> <p>' 2. Where interest coupons, having preference over the bonds to which they were attached, were turned over to the corporation by which they were issued to be cashed and were canceled as to the bondholders, no subsequent information, either to the bondholders or to purchasers of the bonds from them to the effect that the coupons were sold to third parties instead of being paid by the corporation, would affect the rights of the bondholders or purchasers to hold the bonds discharged from the lien of the coupons.</p> <p>3. A promise made to coupon-holders to see that the fund arising on foreclosure sale would he sufficient to meet their claims was without consideration, where, if the promise had not been made, the coupon-holders would not have taken any steps beyond securing that result.</p> <p>4. There was no sale of interest coupons where the holders turned them over to the president of the 'corporation which issued them, at the company’s office, for payment and cancellation, and were not informed by him or anyone that he was purchasing the coupons, and had no reason to suppose that the corporation was not paying them.</p> <p>5. Where interest coupons are presented to the corporation which issued them, and are taken'up, whether the transaction amounts to a payment of the coupons or a sale to a third party who advances the money to take them up, is a question of fact.</p>

<p>1. A conveyance by a paralytic of her property to her niece being-absolute in form, not mentioning its purpose — that the grantee should manage and use it for the grantor’s support during her life, any remainder to be the grantee’s for her services — and the grantor not having had independent advice, but only that of the person who took the acknowledgment, and the instrument containing no power of revocation a reconveyance may be had.</p> <p>2. Á bill to require reconveyance of property on the ground of actual fraud may be amended on final hearing to meet the proof furnished by defendant, namely, that there were other grounds therefor not inconsistent with that pleaded.</p>

<p>1. A man has no right to pass off his goods as the goods of a rival trader.</p> <p>2. The name of a person may become so far associated with the goods of a particular maker, that its use without explanation or qualification by another may deceive a purchaser into the belief that he is getting the goods of A. when he is really getting the goods of B. If the proof be not merely that the trader is using a particular name to designate his goods, but that he is using it in such manner as to put off his goods as the goods of his rival, that rival is entitled to restrain him from using it in that way.</p> <p>3. The rule of law is the same where a corporation takes or imitates the name of a rival trader. It may, as a matter of evidence, be easier to infer the fraudulent intent or false representation, but such intent or representation must still be made out.</p> <p>4. Proof of fraudulent intent is not essential. If a representation, false in fact, though ignorantly or innocently or mistakenly made, be shown, the plaintiff is entitled to relief by way of injunction. The action of the court depends upon the right of the plaintiff and the injury to that right, not upon the motive of the defendant.</p>

<p>On final hearing.</p>

<p>1. A deed given to secure the grantee as surety for the grantor is a mortgage.</p> <p>2. Under the statute giving judgments priority in the order in which executions are issued thereon, the holder of a junior judgment on which execution has issued before issuance of execution on the senior judgment, is not entitled to priority over a mortgage recorded before rendition of the junior judgment, but after the senior judgment.</p> <p>3. A judgment creditor cannot maintain a bill to set aside as fraudulent a quit-claim deed not conveying the fee.</p> <p>4. A bill by a judgment creditor to set aside a deed cannot be Regarded as one to quiet title where the complainant has not peaceable possession o’f the land.</p>

<p>Section 11 of the Chancery act (Revision of 1902), providing for publication against unascertained heirs, devisees or personal representatives and a decree against them by their class designation only, does not apply to the “Act to compel the determination to claims to real estate in certain cases and to quiet the title to the same.” If it did apply, would it contravene the fourteenth amendment to the federal constitution as: not being due process of law. Qucsre.</p>

<p>1. If a demurrant introduces new facts or misrecites the statements of the bill in his demurrer, and on such new facts and misrecitals bases his criticism of the bill, his pleading is a speaking, demurrer and will not be sustained.</p> <p>2. Where a demurrant admits by his pleading that lie received title to lands under a trust to convey the whole of them to another; that he has wrongfully extorted money, in cash, and the promise of more, as a condition of making such conveyance, and (though he has conveyed a part of the-trust lands in accordance with his duty as trustee) has retained another part of these lands as security for the performance of the extorted promise to pay the additional sum, the complainants (who are entitled to the benefits of the trust and seek by their bill to enforce its performance) are not obliged, as an incident of their right to relief in this court, to tender to the demurrant a reconveyance of that part of the trust lands which the demurrant has rightfully conveyed in performance of his duty as trustee.</p>

.On bill, &c. Ex parte. This bill of complaint is .filed by William S. Yoorhies, executor and trustee under the last will of Nelson S. Hibbler, deceased, to obtain a decree instructing the complainant touching his duty in the performance of his trust in regard to the payment of certain moneys bequeathed by the will of the decedent. The will of the decedent testator, Nelson S. Hibbler, is dated the 15th day of August, 1887.

On bill, answers and proofs. The bill of complaint in the first of these cases was filed on July 14th, 1902, by Arthur FT.

On bill, answer and proofs. Tlie hill is filed by J. W. Pratt, who is the executor and trustee under the last will of David Bowers, a copy of which is in the words and figures following: “I, David Bowers, of sound and disposing mind and memory, for which blessing 1 thank Almighty God, do make and publish this, my last will and testament, this eleventh day of April, anno domini, eighteen hundred and eighty-five. “I order and direct all my just debts and funeral expenses be…

On hill, answer and proofs. The original hill of complaint in this cause was filed by Mr. Anderson, who is the holder of a real estate and chattel mortgage against the property of tlie defendant company, to restrain that company from removing any of the stock, fixtures or personal property referred to in that mortgage, except by selling the same in the conduct of its ordinary business, and also for a mandatory injunction, requiring the defendant to return to its factory in…

On bill to foreclose and petition to open final decree to let in a new partjq &c. The bill of complaint in this cause is filed by the Consolidation National Bank against John Larkins, as sole defendant, for the foreclosure of a mortgage for $12,000 upon a number of lots of land in Gloucester City, New Jersey.

<p>Oil application to have receiver’s sale confirmed. Order to show cause, &c.</p>

<p>1. The duty of a deserted wife to invite her husband to return in order to be entitled to a divorce is not measured by the rule which is applied to the case of a deserted husband.</p> <p>2. Where a husband deserted his wife because she refused to support him in idleness according to his desires, and the wife’s acquiescence in his continued desertion arose from a belief that if he should return he would, notwithstanding any efforts on her part to effect a reformation, resume the course of conduct grossly violative of his duty to her of which he had been previously guilty, causing her constant physical or mental suffering, such acquiescence was not a voluntary consent to the husband’s desertion, so as to preclude her from a divorce on that ground.</p>

<p>1. Under Gen. Stat. p. 2980 § 7, providing that sheriff’s deeds on execution shall transfer and vest in the purchaser as good an estate to the premises therein mentioned as could be given by the person against whom the execution was issued, and as fully as if such person had himself sold the lands and delivered the deed, a sheriff, in a sale of real estate on execution, acts as an involuntary agent of the debtor in effecting a conveyance of the latter’s land, and his deed passes the same title which a deed of bargain and sale executed by the debtor would pass.</p> <p>2. Where a creditor stands by during an execution sale of *his debtor’s property, and by his silence conceals his own hostile title, his own title, as well as that of the debtor, will pass by estoppel to the purchaser under the sheriff’s deed.</p> <p>3. Equity will enjoin the purchaser of a judgment, who claims a title to the judgment debtor’s property hostile to that of the judgment debtor, from selling such property on execution, and announcing at the sale that the judgment debtor has no title in the land, but that he (the owner of the judgment) in fact owns the estate which the sheriff is offering for sale, and that the purchaser will get nothing of value by the sheriff’s deed.</p>

<p>1. A covenant, on the sale of a business and good will, not to engage in the same business, does not bind the covenantor’s wife or prevent her from using' her own name in a similar business established by her, though such use injures the good will of the purchaser of the husband’s business.</p> <p>2. In a suit for an injunction, evidence held to show that defendant was engaged directly, as agent, in carrying on a business, in violation of his covenant not to engage “as agent or servant” in such business.</p> <p>' 3. One who has sold his business and good will, and has covenanted not to engage as agent or servant in that business, may not, although he is not engaged in any way in the prohibited business, hold himself out to the world as the manager or superintendent of a similar business carried on under his wife’s name, as one giving to that business the benefit of his special skill and personal attention, and' thereby attract to it the good will which he has sold.</p> <p>4. Where a proprietor of a business has sold the same, and has covenanted not to engage in that business as agent or servant, strangers to the contract, who establish a similar business under the name of the wife of the covenantor, may be enjoined, at the instance of the purchaser of the business, from causing the covenantor to violate the contract by employing him, and holding him out as their active agent and superintendent, with knowledge that the purchaser is thereby being injured and obtaining a corresponding advantage to themselves in their business.</p>

<p>1: Where it clearly appears that a deposit made by a parent to the joint account of the parent and a child is made for the convenience of the parent in drawing money, and not with the intention of making a gift to the child in case she survived her parents, a subsequent change of intention must be proven by clear and satisfactory evidence. Merely permitting the account to remain in their joint names is insufficient.</p> <p>2. The contract between joint depositors and the bank relating to the right and method of withdrawing a deposit is not controlling evidence on the question as to whether one, in making the deposit jointly with the other, intended a gift to the other.</p> <p>3. In order to make a gift effective, the evidence should show an intention on .the part of the donor to divest himself of the possession and control of his property, and it should be inconsistent with any other intention.</p> <p>4. Evidence held insufficient to prove a gift inter vivos, but, on the contrary, to show that the gift was limited to take effect after the father’s death, and hence was void, being a testamentary disposition of the fund in a manner contrary to the statute of wills.</p> <p>5. In order to legalize a gift inter vivos, there must be an absolute parting, on the part of the settler, with the interest which had been his up to the time of the making of the gift.</p>

<p>On order to show cause why an injunction should not issue.</p>

<p>1. A trustee should not be allowed credit for money alleged to have been paid for a judgment against the trust estate merely on his own testimony as to such payment, without any voucher or evidence of judgment or execution.</p> <p>2. Where an attorney-at-law prepared a trust deed for clients for whom he had acted before, in which deed he was warned as trustee to hold the property, sell the same, and apply the proceeds to pay off all liens and encumbrances, and any and all costs, charges and counsel fees connected with the sale or redemption of the property, the trustee was not entitled to retain any part of the fund arising-from the sale of property as remuneration for professional services rendered before the trust deed was made.</p> <p>3. He was entitled, however, to reasonable counsel fees for services rendered after the execution of the deed.</p>

<p>1. The act of a surrogate in assessing on a legatee under a will a tax on the legacy, under the provisions of section 13 of the Collateral Inheritance Tax law, is not a judgment which will conclude the legatee from contesting his liability to the tax, when called upon to show’cause before the orphans court why the tax should not be decreed to be paid, under the provisions of section 16 of the law, although the legatee has failed to appeal from the assessment of the surrogate within the time limited by section 13. The New York act, as construed in Matter of Wolfe, 137 N. y. 205, distinguished.</p> <p>2. An incorporated society claiming to be exempted from taxation under the Collateral Inheritance Tax law as being within the exemptions enumerated in section 1, must make out its claim by proof.</p> <p>3. When such a society claims exemption as a “charitable institution,” it must appear that the purposes and objects to which it is bound to devote its property, are charitable within the doctrine of charitable uses.</p> <p>4. Property devoted to educational purposes is within that doctrine.. It will not be sufficient to show that the society is incorporated under the-laws permitting the incorporation of societies for the promotion of learning ; it must be shown that th'e property is in fact devoted to such purposes and has an educational character.</p> <p>o. The objects of this societj' are “to collect and preserve historical and current accounts of events, persons and inventions, scientific investigations and photographs, drawings, models and specimens, and all other materials of a similar character connected with the interests of Vineland.”</p> <p>0. It appears that the collection of the society is now open to the public, but there is nothing in the terms of the legacy which was assessed, or in the organization or rules of the society, imposing on it any such duty in the future. — Sold, (1) that the objects thus shown do not possess an educational character, and (2) that the collections of the society are not necessarily to be devoted to a public use.</p>

<p>On appeal from the orphans court of Somerset county.</p>

<p>On motion to dismiss appeal.</p>

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

<p>1. Whenever chattels have been placed in and annexed to a building by their owner, as a'part of the means by which to carry out the purposes for which the building was erected, or to which it has been adapted, and with the intention of permanently increasing its value for the use to which it is devoted, they become fixtures, as between the owner and his mortgagee.</p> <p>2. Mortgages which cover both real and personal property (except those made by railroad companies upon their property and franchises) must, in order to make them valid liens upon both classes of property as against creditors, be recorded, not only among the records of real estate mortgages, but also in one of the books provided for the recording of chattel mortgages.</p> <p>3. Actual transcription of a chattel mortgage in the records is necessary in order to make it valid as against creditors.</p> <p>4. By force of section 7 of the Chattel Mortgage act (Gen. Stat. p. MIS), the deposit of a chattel mortgage in the clerk’s office for record creates a presumption of its immediate transcription in the records; and that presumption continues so long as the instrument remains in the office, and until it is actually transcribed, and when that is done the presumption becomes conclusive. When, however, the mortgage is taken away from the clerk’s office without having been recorded, the presumption raised by the statute, being contrary to the fact, ceases to exist, and the mortgage stands in the same condition, so far as creditors are concerned, as if it had never been lodged for record.</p>

<p>1. The quantity of interest which a railroad corporation acquires in land, taken by it under the power of eminent domain, is that which the statute conferring the power authorizes it to take. When the statute declares that the corporation shall be seized and possessed in fee-simple of the land so taken, an estate in fee becomes vested in the corporation; when the statute limits the acquisition to a less estate than a fee, only such less estate passes.</p> <p>2-. When a railroad corporation, incorporated under the General Railroad law, takes land by the exercise of the power of eminent domain conferred upon it by the provisions of that act, the whole present estate in the land becomes vested in the corporation, and the former owner retains no interest therein for the protection of which he is entitled to invoke the aid of a court of equity.</p>

<p>1. Although a husband, after separating himself from his wife and children without lawful excuse, still provides for their support, his conduct may constitute the matrimonial offence of desertion.</p> <p>2. If, after a husband has deserted his wife, articles of separation reciting that tney agree to live apart are signed by them, the husband may, notwithstanding, be adjudged guilty of continued, willful and obstinate desertion, in case it be shown that ne knew his wife’s attitude to be one of dissent from the separation, and his own attitude was one of determination to continue it, whether the articles were signed or not.</p> <p>3. Under the circumstances of this case, a divorce being granted because of desertion by the husband, the custody of two children, one ten years old and the other five, was awarded to the wife.</p>

<p>1. ’An oral contract for the sale of land or of any interest therein, partly or wholly performed, in certain respects, by the party seeking the remedy, may, if such performance is clearly referable to the execution of the contract, be specifically enforced by courts of equity, notwithstanding the statute of frauds.</p> <p>2. Payment of a part, or even of the whole, of the purchase-money, under an oral agreement for the sale of land, is not an act of part performance to take the contract out of the statute of frauds.</p> <p>3. Special acts, personal service or the like, ordinarily compensated for upon a quantum meruit, although performed under an oral agreement to devise or convey land therefor, are not such performance as, standing alone, will take the case out of the statute of frauds.</p> <p>4. An oral agreement for the sale of land in consideration of services to be rendered, where no other act is done in execution of the agreement except the performance of services for which compensation may be had upon the quantum meruit, stands upon the same legal basis as a like oral agreement of sale for a cash consideration that has been paid but no other act done under the contract in execution thereof.</p> <p>5. Where compensation for services is not to be made until a certain date or the happening of a certain event, full compensation may be recovered at law for all services performed prior to that date, as the statute of limitations in such case does not begin to run until the period so fixed.</p>

<p>On appeal from a decree of the court of chancery refusing a divorce and dismissing 'the petitioner’s petition.</p>

<p>The defendants agreed with the complainant not to use any trading stamps except the complainant’s during the continuance of the contract, but, notwithstanding this agreement, used the stamps of complainant’s competitors; the complainant filed this bill for an injunction. — Held, that the remedy at law was adequate, and that the bill was properly dismissed.</p>

<p>The defendants agreed in writing with Cahill to convey, by general warranty deed, land which was at the time subject to a right of way. Cahill assigned the agreement to the complainant, who, upon the refusal of defendants to fulfill the contract, filed a bill praying for specific performance, with compensation for the encumbrance. It was agreed that the right of way should be considered as located along the boundary line between the tract to be conveyed and other property of the complainant.— Held, (1) that in determining the compensation the peculiar .value of the tract, if unencumbered, to the complainant for development in connection with his other land, cannot be considered; (2) that under the circumstances of this case, compensation is such sum as bears the same proportion to the whole purchase-price as the area of land affected by the right of way bears to the whole area.</p>

This is an appeal from a final decree of the court of chancery, made upon a bill taken as confessed for want of a plea, demurrer or answer. A bill for foreclosure and sale was exhibited in the court of chancery in October, 1903, by the New Jersey Building Loan and Investment Company, complainant, against George R. Lord, executor of the will of Mary E. Lord, deceased, and others, defendants.

<p>1. The “voting trust” in the stock of “The Fisheries Company,” a New Jersey corporation, claimed by or on behalf of the “Pim committee” and “The Association of Foreign Shareholders of the Fisheries Company, Limited.” a corporation of Great Britain, or either of them, is contrary to the public policy of this state, inoperative, null and void. (By the court.)</p> <p>2. An irrevocable “voting trust,” or any other irrevocable grant (uncoupled with an interest in the stock to be voted upon) assuming to confer upon the donee the power to vote at stockholders’ meetings for the choice of directors, is contrary to the letter, and also to the spirit and policy of the General Corporation act of New Jersey. P. L. of 1S96 p. 277. (Pitney, J.)</p> <p>3. The equality of each share of corporate stock in the eye of the law is an established principle in this state. (Green, J.)</p> <p>4. The validity of a voting trust in this state is subject to at least two limitations, to wit, (a) that the holders of all of the shares of the corporation shall have an equal privilege (after fair information) of availing themselves of the trust agreement, and (ii) that the object and aim of the trust shall be the equal benefit of all the shares. (Green, J.)</p> <p>5. The voting trust under consideration ignores or defies the two limitations (a) and (6), and also ignores or defies the statutory policy of the equality of every share in the eye of the law; hence it cannot stand. (Green, J.)</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 19 Rich. Oh. Rep.</p>

<p>On appeal from a decree of Vice-Chancellor Pitney, whose opinion is reported in 20 Dick.' Ch. Rep. J¡:39.</p>

<p>On appeal from a decree advised by Vice-Chancellor Pitney, whose opinion is reported in 19 Dich. Gh. Rep. J¡25.</p>

<p>.On appeal from a decree of Vice-Chancellor Reed, whose opinion is reported in 19 Diclc. Gh. Rep. 155.</p>

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

<p>On appeal from a decree advised by Vice-Chancellor Emery, whose opinion is reported in 20 Dick. Gh. Rep. 109.</p>

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

<p>On appeal from a decree advised bj' Vice-Chancellor Reed.</p>

<p>1. It is not necessary that the extra hazardous condition existing at a ■crossing shall have been caused by the railroad company to justify the ■court of chancery in making the decree authorized by the act entitled ■“An act for the protection of railroad crossings,” approved March 16th, 1898. It is only necessary that conditions exist at a crossing, at the time the petition is filed by the governing body of a municipality under said act, which make it reasonable and necessary for the security of human life or the protection of the public, that gates or bars', or other reasonable provision for protecting such crossing, shall be erected and maintained.</p> <p>2. The act of March 16th, 1898, is not unconstitutional under article 3 of tlie state constitution. It does not confer upon the judiciary powers which belong exclusively to the legislative department of government.</p>

<p>A court of equity, having jurisdiction of the case made by the bill of complaint, may, notwithstanding its capacity to grant the relief prayed for, of its own motion, dismiss the bill at any stage of the cause upon the ground that the complainant has an adequate remedy at law. When, however, no objection upon this ground is raised by the defendant, the court may, in the exercise of a sound discretion, retain the cause.</p>

<p>On appeal from a decree in chancery advised by Yice-Chancellor Eeed.</p>

<p>A constructive trust will arise against a person who, by falsely representing to B that he is acting in the interest of 0, obtains from B property which B intended to give to C, and that trust may be enforced by C irrespective of the question whether 0 had an enforceable claim against B.</p>

<p>On appeal from a decree advised by Yice-Chancellor Emery, whose opinion is reported ante p. SJ.</p>

<p>On appeal from a decree advised by Yiee-Chancellor Stevenson, whose opinion is reported in 20 Dick. Gh. Rep. 668.</p>

<p>On appeal from an order of the chancellor.</p>

<p>Upon the evidence in this case — Held, that certain advances made by Hollins to the American Union Electric Company were made not as loans to- the company, but in performance or part performance of certain promises made by him to his associates in the enterprise, and substantially as payments for his stock in the company.</p>