Volume 74 — New Jersey Equity Reports

Heard on bill, amended bill, answers, replications and proofs. The complainants are two cestuis que trust or beneficiaries under the will of Catherine Yan Houten, being each now separately entitled to the whole or part of the income of the one-sixth part of residuary estate of the testatrix, which was devised and bequeathed in six equal parts.

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

<p>1. Communications of a principal to his agent, which, are simply intended as a delegation of power or instruction to the agent, but which the principal gives the agent no authority to deliver, have not the force-of evidence of a contract in favor of the third party.</p> <p>2. After defendant had written several letters to her agent instructing him to sell her property for a specified price, the agent wrote her that several had declined her proposition, but that he was dealing with one-who would pay a price less than that specified. She wired that she-would sell for a sum between the specified and offered prices if the sale could be made before a certain time. The agent sent the telegram to-the third person, who replied that he would not increase his offer, asking the agent to submit it again, and nothing more. This the agent did,, advising defendant to accept the offer, but she, instead of accepting, wired a third price at which she would sell. — Held, in a suit by the third, person for specific performance, that the letters and telegrams of defendant were mere instructions to her agent as to terms of sale, and not communications intended directly for complainant, or to be delivered to-him either as evidence of contract or otherwise.</p> <p>3. In a suit for specific performance of a contract to sell real estate, where the contract relied upon consists of a series of communications between defendant and her agent, and a letter from the complainant to the agent containing an offer for the property, the connection of the letter with defendant’s communication cannot, as against defendant and for the purpose of making out a contract signed by her and within the statute of frauds, be proved by the parol evidence of the agent and complainant, where such letter is not referred to in any of the defendant’s subsequent communications.</p> <p>4. In a suit for specific performance of a contract to sell real estate, the written agreement relied upon consisting of a series of letters, parol evidence was inadmissible to show who the vendee was.</p> <p>5. In a suit for specific performance of a contract to sell real estate, the written agreement relied upon consisted of a series of communications between defendant and her agent, and a letter from complainant to the agent containing an' offer for the property, but was defective because no connection appeared between the letter and communications, and the latter disclosed no purchaser. — Held, that the subsequent receipt of a payment on the contract given by the agent in defendant’s name, and referring to complainant as the purchaser, is not evidence against defendant on the question whether the writings constituted a sufficient contract of sale by memoranda signed by defendant herself; he not being her .agent for the purpose of making such subsequent admissions in reference to her own previous contract.</p> <p>6. The employment of a broker to sell lands — that is, to procure purchasers — does not of itself or prima facie confer authority to bind the owner to sell by a contract in writing, and such authority is not usually to be inferred from the use by the principal and agent in that connection of the terms “for sale” or “to sell” and the like; such words in that connection usually meaning no more than to negotiate a sale by finding a purchaser upon satisfactory terms.</p> <p>7. Any parol evidence relied on to establish the authority of a broker to make a binding contract must be clear and decisive.</p> <p>8. After defendant had written several letters to her agent instructing him to. sell her property for a specified price, the agent wrote her that several had declined her proposition, but that he was dealing with one who would pay a price less than that specified. She wired that she would sell for a sum between the specified and offered prices, if the sale could be made before a certain time. The agent sent the telegram to the third person, who replied that he would not increase his offer, asking the agent to submit it again, and nothing- more. This the agent did, advising defendant to accept the offer, but she, instead of accepting, wired a third price at which she would sell. Finally, upon the agent’s informing her that he could do no better than the price offered, she telegraphed him that she would sell for such price, but would only pay half the commissions, and asked him to wire in case of acceptance.— Held, that defendant’s letters and telegrams did not clearly authorize the agent to make himself a contract of sale, binding on the principal, even on the terms given therein.</p> <p>9. The simple authority of a broker to sell, even if he had the power to execute the contract of sale, could not authorize an agreement to sell with full covenants of warranty, inasmuch as a purchaser, under an agreement to convey, while he is entitled to a clear title, is not entitled to covenants of warranty unless-the vendor has so stipulated.</p> <p>10. A broker’s authority to sell certain land for a specified sum did not authorize an agreement to sell for a part of the price in cash, the balance to be represented by a mortgage on the premises.</p> <p>11. Mutuality in the specific performance of contracts is one of the essential equitable rules, and, although unilateral contracts are enforced, against the party signing, when intentionally made in that form by the party signing, the court exercises its discretion as to specific performance of such contracts with great caution, and views somewhat narrowly the conduct of the party claiming the benefit of his unilateral right to make the contract absolute.</p> <p>12. A unilateral contract becomes binding on the party who has not signed only by the filing of a bill for specific performance, and up to that time he is free from any equitable obligation.</p> <p>13. A broker employed to sell or procure a purchaser does not earn his commissions by procuring persons to sign an option to purchase which does not bind them to purchase. .</p> <p>14. A broker, having authority to sell certain land and to execute the contract of sale, sold the land, and accepted a partial payment, for which he gave a receipt acknowledging the payment on account, reciting his agreement to sell and convey for a specified sum, and setting out the manner and time of payment. The receipt was signed by the broker for the principal. Subjoined thereto was the following form: “I hereby agree to purchase the above property upon the terms and conditions named”— but it was not signed by the purchaser. The purchaser’s failure to sign was without the principal’s knowledge. — Held, that the broker’s authority did not authorize the sale as evidenced by the receipt; it being a unilateral contract binding only against the principal, and not against the purchaser, for which reason specific performance will not lie against the principal.</p> <p>15. Where a broker was negotiating with plaintiff for the sale of defendant’s land, and defendant, refusing to accept plaintiff’s offer, wired the broker that she would sell for the amount named by plaintiff provided the latter paid half the commissions, and defendant intended the telegram to be delivered to plaintiff, the latter could not 'have specific performance, unless he accepted the new terms, including commissions; the contract before acceptance being unilateral.</p>

<p>Heard on bill, answers, replications, decree pro confesso and proofs.</p>

On bill for injunction. Heard on bill, answer, replication and. proofs in open court. The object of this bill, filed by the city of Paterson against the East Jersey Water Company, is to restrain the water company from the further diversion of any of the waters of the Passaic river which flows through the city.

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

<p>1. An action by a home corporation against a foreign corporation not engaged in business in this state, and without any office, agent, or place of business in the state, to establish title to treasury shares of the capital stock of complainant, which defendant claims to own absolutely, but which complainant alleges were held by defendant’s testator in his lifetime as security for the payment of a sum of money, is an action quasi in rem, although complainant asks for a transfer of the shares of stock, and no receiver has been appointed to take possession of the res, and therefore is within the jurisdiction of the court of chancery, and defendant, having been duly notified of the suit by the statutory publication of notice, and actual service of notice of the suit, and of the order requiring it to appear and plead on or before a time stated, will be bound by the decree, if it refrains from appearing, so far as the same relates to the status of the stock.</p> <p>2. The essential-elements of an action quasi in rem are a res located within the territorial limits of the state in such a way that the state can exercise absolute power to control and dispose of it, a course of judicial procedure, the object of which is to subject the res to the power of the state directly by the judgment or decree, which is entered as distinguished from a course of procedure which only disposes of the res by compelling a party to control or dispose of the res, and a course of judicial procedure on its face directed sufficiently toward the res so as to disclose this res to the defendant when reasonably notified of the action.</p> <p>3. The notice to non-resident defendants prescribed by P. L. 1902 p. 514 §§ IS, IS, directing service on non-resident defendant by notice, the form and scope of which shall be prescribed by the chancellor, and rule 58 of the chancery court, stating that the notice shall state “the object of the suit and why the persons to whom it [i. e., the notice] is addressed are made defendants,” require that the notice shall apprise the defendant, not only that he is sued, but also of the nature of the suit, and disclosure of the res toward which the suit is directed.</p> <p>4. The jurisdiction in actions quasi in rem is based on the power of the sovereign state to exercise control over all objects to which that power can be directly applied.</p> <p>5. Where an action is brought which involves property within the state, and non-resident defendants are fairly notified of the action, and have ample opportunity to appear and be heard therein, the rights of all parties interested in such property are determined in such action by due process of law.</p> <p>6. An action strictly in personam for the recovery of corporate stock, the situs of which is in the state, may be brought in the chancery court.</p> <p>7. Where a holder of an equitable title to chattels takes possession, he thereby acquires a legal title, as the only right in respect to the chattels remaining in the original holder of the legal title is to convey the same to the holder of the equitable title, and this right of the holder of the equitable title is further established by P. L. 1902 p. 524 (section 44 of the revised Chancery act of 1902). providing that “the decree of the court of chancery shall * * * have the force, operation and effect of a judgment at law in the supreme court of this state,” and P. L. 1902 p. 526 § 46, providing that, when a complainant obtained a decree the court of chancery should have power “to cause by injunction the possession of the effects and estate demanded by the bill, and whereof the possession or a sale is decreed, to be delivered to the complainant or otherwise according to such decree and as the nature of the case may require,” and therefore a court of equity may acquire jurisdiction of a suit to establish rights in personal property in the custody of a person in this state, as against a non-resident, as such a suit would be one quasi in rem; a decree in personam not being necessary to transfer the legal title to complainant.</p> <p>8. A contention, that jurisdiction cannot attach for the reason that the court cannot enforce its decree cannot be sustained, since the court can enforce the decree .by the appointment of a receiver to take possession of the property, and by a decree enjoining- the custodian from interfering with the receiver’s possession.--</p> <p>9. But such jurisdiction is not dependent on the action of the complainant in moving for, or actually obtaining, the appointment of a receiver, or the issuance of an injunction, but on the existence of the power to seize the property; and a mere possibility that the court’s decree may be rendered nugatory by a removal of the property from the state does not destroy the quality of the suit as one quasi in rem.</p> <p>10. Nor is the character of such suit as one quasi in rem taken away by the fact that 'the suit is brought by the custodian of the property, since the same remedies for the enforcement of the decree may be applied at the instance of the defendant.</p>

<p>Heard on bill, answer, replication and proofs in open court.</p>

<p>A stipulation in a bond and mortgage to secure the payment of money borrowed as to the date when the interest on the money should begin to-run was controlling, though the money was not paid over to the borrower until a much later date, where the agreement for the loan was made at the time stipulated, and the whole of the money was then held ready for the use and control of the borrower.</p>

<p>Where a bill by a distributee in the estate of a decedent alleges that the estate has not been settled, and that no decree of distribution has been made by the orphans court, and fails to aver any special reason or cause why the court of chancery should interfere with the administration of the estate in the orphans court, the court of chancery will not interfere.</p>

Heard on bills, answers, cross-bills, answers, replications and proofs in open court. The two above-entitled cases .were tried together.

Heard on bill, answers, cross-bills and answers, with respective replications and proofs in open court.

On bill by the attorney-general and relators to restrain certain use of the Second Eegiment armory at Trenton. The bill is filed by the attorney-general,' in behalf of the state, upon the relation of Barker G. Hamill and others, to restrain the officers of the Second Eegiment of the National Guard, now in the immediate charge of the state armory at Trenton, from using the armory building for roller-skating and dancing.

On demurrers and plea to an information filed by the attorney-general to set aside certain stock and bonds issued by defendant gas companjc The information is filed on behalf of the state by its attorney-general on relation of the Millville Improvement Company.

<p>On bill for injunction and receiver of mortgaged personal property.</p>

The bill is filed to foreclose a purchase-money mortgage for $100,000 made by Jane Forteseue to the Columbia Real Estate Company and dated March 1st, 1906.

On bill, plea and replication. In 1903 complainant and her husband, Orlando C. Kelsey, filed a bill in this court against the present defendants and Jane Stevenson for certain specific relief therein set forth. The present defendants answered and after a replication filed by complainants the cause came on regularly for hearing before Vice-Chancellor Grey.

<p>1. Where complainant’s grantor, in contemplation of securing a certain hotel building, agreed to lease it to defendant upon certain terms, a formal lease to be executed by the parties in accordance with the agreement after the lessor had acquired title, and, in executing the formal lease thereafter, the annual rental was, through a clerical error, stated to be less than that agreed upon, the agreement cannot be treated as a present ^demise, so as to afford complainant a legal remedy thereunder.</p> <p>2. The general rule of equity is that, to warrant the reformation of a contract for mistake, the mistake must be mutual, while in the case of a unilateral mistake the remedy is rescission; but equity will reform a contract in the case of a mistake of one party accompanied by fraud or other inequitable conduct by the other party.</p> <p>3. Complainant’s grantor agreed to lease certain property to defendant for four years after he had acquired it, the ^contract stating the annual rental to be paid, and the time of payment, &c., the parties to execute a formal lease pursuant thereto after the lessor had acquired the property, and, the latter having thereafter acquired it, a lease was prepared and signed by the parties, but through a clerical error the annual rental stipulated was less than that stated in the contract, the total rentals for the four years being the same. The lessor signed the lease, believing its terms to be the same as the contract, but defendant testified that he noticed the annual rental was less, but did not mention it, as it was his intention to refuse to sign the lease until he discovered the change in the rental stipulated. — Held, that defendant, by his silence, having led the lessor to believe that he was signing the lease called for by the contract, equity will reform the lease to conform to their agreement.</p>

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

<p>On motion to discharge writ of ne exeat.</p>

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

<p>1. Where a bill for injunction alleges in general terms that irreparable injury will result by the act complained of, but fails to disclose wherein such irreparable injury will arise, or to aver that defendant is pecuniarily irresponsible, or that the damages will not be easily ascertainable and recoverable, no ground for relief is shown, in the absence of other recognized grounds of equitable jurisdiction.</p> <p>2. Where the riparian commissioners granted land below high-water mark, "with the right and privilege * * * to exclude the tidewater from so much of the land * * * as lies under water by filling in or otherwise improving the same, and to appropriate the lands under water,” the right of the grantee, before appropriation of the land, to exclude others from exercising a common right to fish, is in such doubt that injunction will not issue to protect it.</p>

On petition of Frank & DeKayser for possession of certain chattels. Suit to determine whether an unrecorded conditional sale agreement is valid as against the receiver and general creditors of defendant insolvent corporation.

On bill for injunction to restrain defendant from engaging in an opposition business contrary to his agreement. The bill seeks to enforce against defendant a certain contract wherein defendant agreed not to engage in the ice business within a specified territory for a period of one year. Defendant was employed by complainant as a driver of an ice wagon and canvasser for customers.

<p>After the death of defendant’s aunt there was found among her effects a paper signed by her, to the effect that she desired defendant to have all her property, but the paper was ineffectual as a will. Defendant procured a conveyance of certain real estate which had belonged to his aunt from her two surviving sisters, but afterwards, discovering that complainant, a child of a deceased sister of the aunt, had inherited an interest, he procured a conveyance from her. He testified that he told her that the aunt had left a will, but that it was of no value, except to show her intention, and that the title company would not pass the title -unless it was made good by her signature. She testified that he told her that a will had been left to him, but that there was a slight technicality in the wording of the will which woúld necessitate her signature in order to obtain title insurance. Complainant executed the conveyance without receiving any consideration, and, though the property was valuable, defendant failed to disclose its value, and complainant had np knowledge of the value. — Held, that complainant was entitled to a cancellation of the deed for fraud.</p>

Final hearing on bill, answers and replications. The bill in this case seeks a construction of the will of Oliver Smith, who died in 1875. The testator left him surviving two children, Emma L. Burnett, who is still living, and Stephen O. Smith, who died in 1906. Mrs. Burnett, the surviving child, has three children, Frederick M. Burnett, Anna Y. Canniff and Neville S. Burnett. Stephen O. Smith, the deceased son, left a widow, Alice M. Smith, and a daughter, Mary A. Smith.

On final hearing on bill, answers, replication and proofs. The bill in this case is filed by an executor and trustee; it seeks a construction of the will under which he is acting, and directions as to the disposition of a particular fund remaining in his custody. The will in question was executed in December, 1871. The testator died in January, 1872. He left three children, all of whom he provided for.

<p>1. In a suit for the cancellation of a contract to sell certain land, evidence held insufficient to warrant a finding that the contract was altered after it was signed.</p> <p>2. Where a broker acting for plaintiff in the sale of certain land procured a contract on Sunday, by which plaintiff agreed to sell the land to R. but the contract was not delivered to the purchaser until the following Monday, it was not objectionable as a violation of the Sunday law.</p>

<p>1. A seller wrote to a buyer, offering to sell machinery for a specified price, terms half cash, balance within a specified time, machinery to remain the seller’s property “until fully paid for.” , The buyer accepted the offer and ordered machinery, which was furnished. — Seld, a conditional sale, and that the title remained in the seller until the price was fully paid.</p> <p>2. Under P. L. 1898 p. 610, providing that conditional sales are void as against judgment creditors and subsequent purchasers and mortgagees in good faith, unless the conditions of the sale shall be expressed in a writing which has been recorded, a receiver of an insolvent cannot, as such, in the absence of judgment creditors of the insolvent, attack a conditional sale to the insolvent, though the conditions were not expressed in writing and recorded.</p> <p>3. A seller sold a machine on condition that the title should remain in him until the price was paid. The machine was delivered, and was set up on a foundation, and was put in actual operation as a part of the plant of the buyer, who, without paying the price, mortgaged his real estate. — Seld, that the mortgagee could not claim the machine, though the conditions ,of the sale were not expressed in writing and recorded, since he could only hold property which belonged to the buyer and became affixed permanently to the realty,</p> <p>4. A domestic corporation having an office in a sister state sent letters from its office there to a foreign corporation there relating to the purchase of machinery from the foreign corporation. The last letter written by the domestic corporation in reference to the matter was written in New Jersey to the foreign corporation at its office in the sister state. The correspondence resulted in a contract whereby the foreign corporation sold machinery to the domestic corporation. — Seld, that the contract was not made in New Jersey, so as to preclude the foreign corporation from recovering it on the ground that it was doing business in the state without complying with the laws as to foreign corporations.</p> <p>5. The court of chancery has jurisdiction over the subject-matter of a controversy involving the right of a seller to resume possession of goods conditionally sold and delivered to a buyer becoming insolvent without having paid for the goods, as against the objection that there was an adequate remedy at law.</p>

<p>1. Land includes the water upon it, and when the fee to land is acquired by condemnation everything which in the legal sense is comprehended in the term land, including water, vests in the expropriator.</p> <p>2. When land,-which has water upon it, is condemned, the law gives as compensation to the owner the value of the land, including the value of the water; that is, if the value of the land is commercially enhanced by the presence of the water either in the immediate present or in reasonable anticipation in the near future, the benefit of it is given to the owner.</p> <p>Where an action at law is pending, relief by bill in equity concerning the same subject-matter should only be auxiliary to the action at law, and questions of a legal character which have been or may be decided in that action should not be reviewed.</p> <p>4. AYhere a motion for a preliminary injunction is denied, and it appears that the court is without jurisdiction to grant the relief prayed, or that the bill itself is absolutely and palpably lacking- in equity, the bill may be dismissed, although no demurrer has been filed thereto, nor any notice given of a motion to dismiss under rule 213 of this court.</p>

<p>1. Four sisters and four brothers being seized in fee of a tract of land, the sisters conveyed their undivided interests, amounting in all to one-half of the fee, to their four brothers, three of whom, being of age, executed four several bonds to their sisters respectively, and gave them collectively a mortgage upon the same premises, to secure a portion of the purchase-money; the brother, who was a minor at the time the mortgage was given and who did not join therein, came of age within two years after the giving of the mortgage, and lived for more than thirty years thereafter and died, devising his one-fourth interest to his three brothers who made the mortgage; and the mortgage is now being foreclosed.' — Held, that the outstanding undivided one-fourth interest in the premises did not come under the lien of the mortgage when the entirety of the fee vested in the three brothers, the mortgagors, by reason of the devise to them of the one-fourth by their brother upon his death, and that the complainants’ mortgage is still a lien only upon the three undivided one-fourth parts and interest in the mortgaged premises; and this because there is no covenant of seizin or for title in the mortgage, and no intention is apparent that the outstanding one-fourtli interest should ultimately fall within the mortgage; hence no estoppel has been worked.</p> <p>2. On December 14th, 1858, the three brothers, the mortgagors, made a deed to R. P. for a portion of the mortgaged premises. The deed from the sisters to the brothers, dated December 9th, 1858, was recorded May 3d. 1860. The mortgage from the brothers to the sisters, dated January 1st, 1859, was recorded May 3d, 1860. The deed to R. P. was recorded October 9th, 1860. There were other conveyances of portions of the mortgaged premises as follows: To S. A., May 1st, 1S60; to G. B., July 23d, 1861; to M. K., March 31st, 1874. The deed to S. A. was recorded September 10th, 1860; the deeds to G. B. and M. K. were both made and recorded after the making and recording of the mortgage. These tracts, by sundry mesne conveyances and devolutions of title, have become vested in others than the original grantees, but the original grantees and their successors in title, including the present owners, have been for more than twenty years last past in the full exclusive and actual possession of their several distinct parcels of mortgaged premises without admitting the title of the mortgagees and with no claim for principal or interest having been made against them and without any entry by any holder of the mortgage; they have improved their tracts by the erection of houses and other buildings thereon, have paid the taxes upon their lots and exercised in every particular all the usual acts of ownership over the same. — Held, therefore, that the mortgage is no longer any lien at all upon any of these several tracts.</p> <p>3. Two of the brothers, being then seized of the entire fee of the premises, by virtue of their individual holdings and under the will of their deceased brother, and by a conveyance by their surviving brother, in the years 1891, 1895 and 1903 made three other several mortgages upon the premises to several mortgagees. Pending this suit one of the brothers died intestate and his interest in the mortgaged premises descended to his heirs-at-law, who are his surviving brother, and his nephews and nieces, children of his deceased brothers and sisters. They, the surviving brother and those nephews and nieces, are the owners of the interest in the mortgage of one of the sisters in certain proportions, as well as being owners of the fee of the mortgaged premises. — Held, as against the mortgages of 1891 and 1895 (the question not being raised as to the mortgage of 1903) there is no merger of their interests in the original mortgage of 1859 into their title to the fee in the lands, because the subsequent mortgages are presumed to have been taken with reference to the state of the record, which, in the case of the one of 1S91 would have disclosed the existence of the complainants’ mortgage and no interest therein at that time in the now owners of the fee, ancl there being no unity of title as mortgagees and owners there could have been no merger at that time; and, since acquiring title to such interest in the mortgage they have done nothing themselves to cause a merger; and as to the mortgage of 1895 there is no merger, because, when it was given while the two brothers, who were owners of the fee, were already beneficiaries of one of the original mortgagees, yet they did nothing themselves whereby they can be held to have harbored any intention to surrender their interests in the original mortgage, which they derived as legatees, in favor of the mortgage of 1895.</p> <p>4. Buie 224 of this court, promulgated in pursuance of section 91 of the Chancery act (P. L. 1902 pp. 510, 540), provides for the only allowance by way of fee for counsel for the complainant that can be made in a foreclosure suit, litigated or ex parte. Whatever the complainants’ counsel is entitled to beyond the amount provided for in rule 224, he will have to collect from his clients.</p>

<p>On bill and demurrer.</p>

<p>The case of Neilson et al., Executors, dc., v. Russell, Surrogate, et al., 76 N. J. Law (47 'Vr.') 27, approved and applied.</p>

<p>C. conveyed property to R. in 1896, at the same time giving O. the right to repurchase within ten years on paying a certain sum, fixed payments to be made at specified times. In 1900 R. reconveyed the property to C., subject to a mortgage held by W., payment of which C. assumed. In 1901 W. foreclosed the mortgage, R. buying at the sale, and thereafter deeding the property to Col., receiving as part payment a mortgage on the premises. — Held, in a suit to foreclose the latter mortgage, that evidence that after 1896 C. made large payments to R. on account of the purchase price was immaterial on the defence of fraud, and that R. was not entitled to the full amount of the mortgage, in the absence of evidence that the moneys so paid were not due as part of the purchase price for the reconveyance in 1900; and likewise proof that R. neglected to pay W. interest on W.’s mortgage as it accrued was immaterial, in the absence of evidence of obligation to pay it.</p>

J. Eq. (4 Robb.) 291. The decree of the court of chancery dismissed an information filed by the attorney-general against eight domestic fire insurance companies and one hundred and thirteen foreign fire insurance companies praying for a decree adjudging a certain agreement in writing entered into by the defendants to be void as an ultra vires act injurious to the public, and that the said companies be enjoined from continuing to act under such agreement..

<p>A testator, by his will, provided as follows: “Third. I own one third of the saw mill, under the firm of S. L. Shimer & Co., it is my will and I do order the one third sold, within one year after my decease to the best advantage, and the money paid over to my wife Charity for her use, and I also will her all my Personal Property, that I am possessed of, and' if there should he anything left, after her death, then I want that divided also with the money from the House and Lot.”. — Held, that the widow took an absolute estate in the proceeds of sale and in the personal property.</p>

This is an appeal from an order of the court of chancery by .which the appellant, Gustav A. Krauss, upon certain terms and conditions, was relieved and purged of his contempt and discharged from imprisonment under an attachment theretofore issued against him for disobeying a decree of the court of chancery, which ordered him to pay alimony to his wife.

<p>In the case of State Bank v. Receivers of the Bank of New Brunswick, S N. J. Bq. (2 Or. Oh.) B66, decided in 1835, it was held that the “Act to prevent frauds by incorporated companies” was essential!, a bankrupt act; and it was further held that a creditor holding collateral security of an insolvent corporation must apply his securities to the payment of his debt and prove only for the balance. The essential bankrupt features of this act and its re-enacted provisions have since been repeatedly recognized by our court of chancery, and once by our supreme court. The practice in distributing the assets of an insolvent corporation under this act has been in conformity with the rule in bankruptcy, including the rule respecting the rights of creditors holding collaterals of the insolvent corporation. — Held, that the rule thus adopted seems quite as, if not more, equitable than the rule which permits a creditor to prove for his whole debt and retain his collaterals; but without considering and deciding upon the relative merits of the two systems — Held, that because this rule in bankruptcy has prevailed, with judicial recognition, for over seventy years, it should be retained.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 72 N. J. Eq. (2 Buck.) 340.</p>

<p>On appeal from the decree of the court of chancery advised by Yice-Chancellor Emery, whose opinion is reported in 7I£ N. J. Eq. [2 Buck.) 559.</p>

<p>Proof by the oath of one who did not, in fact, subscribe his name as a witness to the execution of a chattel mortgage by a corporation, although he deposes that he did so subscribe, is not’ the proving of an instrument sufficient to authorize its record so as to give it priority over creditors under our statute, which requires such proof to be made “by one or more of the subscribing witnesses to it.” The proof must be made by one who subscribes his name as a witness after seeing the writing executed, or hearing it acknowledged.</p>

<p>1. It is repugnant' to the well-settled judicial policy of this state to permit the continuance in control, directly or indirectly, of directors or officers of a corporation against whom is made out a prima facie case of malfeasance in office, or who appear.under the proofs to have been unfaithful to their trust as representatives of the shareholders, and to have used their official positions to their own advantage and to the resulting injury of the corporation and its shareholders.</p> <p>2. Where directors and officers, pending an application for a receiver on the ground of insolvency alleged to have been caused by their wrongdoing, passed a resolution recommending the dissolution and liquidation of a building and loan association, and indirectly procured the appointment by the shareholders of three certain trustees in liquidation, it was the duty of the court, insolvency being shown, forthwith to remove the trustees, and appoint a receiver who, neither by his official participation in the affairs of the insolvent company nor by personal affiliation with the individual directors, would be embarrassed in the due administration of his office.</p> <p>3. Chapter 24 of the laws of 1904 (P. L. 1904 V• 44) does not provide a substitute method of winding up the affairs of an insolvent corporation. The statute is not applicable to insolvent corporations.</p>

It is an interpleader bill, the contesting defendants being, on the one hand, Abraham L. Jacobs, who is a trustee in bankruptcy of (inter alios) John VanSickle, and, on the other, George H. Kline, the father-in-law of VanSickle, to whom VanSickle made the assignment whose legality is the subject of this controversy.

<p>On appeal from a decree of the prerogative court advised by Vice-Ordinary Bergen, whose opinion is reported in 73 N. J. Eq. (3 Buck.) 353.</p>

<p>On appeal from an order made by the former chancellor, overruling a demurrer to' the bill of complaint, upon an opinion reported in 73 N. J. Eq. (3 Buck.) 1.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Bergen, whose opinion is reported in 70 Atl. Bep. 660.</p>

<p>On appeal from a decree of the court of chancer)' advised by Vice-Chancellor Stevenson, whose opinion is reported in 78 N. J. Eq. (8‘ Buck.) 595.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Grey, whose opinion is reported in-71 N. J. Eq. (1 Buch.) 587.</p>

<p>On appeal from a decree of the former chancellor advised by Vice-Chancellor Garrison, whose opinion is reported in 73 N. J. Eq. (3 Buch.) 230.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Garrison, whose opinion is reported in 72 N. J. Eq. (2 Buch.) 248.</p>

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Howell, whose opinion is reported in 72 N. J. Eq. (2 Buck.) 8kl.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Learning, whose opinion is reported in 72 N. J. Eq. (2 Buch.) 346.</p>

<p>On motion to dismiss bill of complaint.</p>

<p>On bill and demurrer.</p>

<p>1. That two judgments were on record against vendors was a valid objection to their title to land.</p> <p>2. A dedication of a proposed street across land made by filing a map in 1857 was a cloud upon vendors’ title, entitling proposed purchasers to refuse to take title in the absence of a vacation of such street, though the street was never accepted and the land covered by it had been mostly, if not entirely, improved and enclosed.</p> <p>3. Ordinarily, if time is not of the essence of a contract to convey, it is sufficient if the vendor can give clear title at the date of a decree to compel the purchaser to specifically perform, though the vendor has no clear title when the bill is brought.</p> <p>4. A contract dated September 22d provided for a conveyance of vacant land on or before October 15th, and that on the passing of title the purchaser might take possession. The purchaser intended to build and early possession was important, if not necessary, to effect the object of the purchase. Vendors knew that the purchaser intended to build, and that he desired immediate unclouded possession. — Held, that while the contract itself did not make it so, considering its terms with the other facts stated, time of passing title was of the essence of the contract.</p> <p>5. Where one party to a contract to convey land notifies the other that he will not perform, a bill to specifically perform the contract must be filed speedily, unless the party receiving the notice be in possession.</p> <p>6. That one who contracted to buy land rejected vendor’s title October 19th, and they did not sue to specifically perform until February 19th, does not show laches barring their right to sue, where the purchaser was ’ absent for some time in the meantime and did not sue to recover the deposit made by him on the purchase price until February 1st, and there were other circumstances which might have reasonably led plaintiff to suppose that the negotiations were not finally closed.</p>

<p>1. Where an original chattel mortgage on the property in controversy, containing no defect in the paper itself or its execution, but only in its proof for record, was destroyed, and a new mortgage executed and accepted by the mortgagee, without objection, subsequent to a sale of the property by the mortgagor and a remortgage thereof by the purchaser, such original mortgage could not be resuscitated and enforced as a prior lien on the property against such purchaser and its mortgagee without proof that the latter sale and mortgage was voluntary or taken with notice of the existence of the first mortgage.</p> <p>2. Where a chattel mortgage given to P. did not describe him as a trustee, and the consideration was obtained through a sale of the mortgagor’s notes, secured by the mortgage, and was in fact furnished by B., an affidavit attached to the mortgage in which P. verified that he was the trustee and beneficiary in the mortgage, and that the consideration was $5,000 paid to the mortgagor, could only be construed to mean that the consideration was paid by P. himself, either personally or as trustee, and was therefore false.</p> <p>3. Where a mortgagee’s affidavit attached to a chattel mortgage on personal property was false, the landlord’s claim for rent of the building in which the property was located was entitled to priority of payment from the proceeds of the sale of the property, though the mortgage was made prior to the accrual of the claim for rent.</p>

<p>1. The rule allowing stockholders to avoid contracts made with another corporation by common directors, applicable where the contract is made through the directors alone, is inapplicable to the action of directors in those statutory proceedings where the final action is that of the stockholders themselves, acting in their individual rights and according to their individual interests.</p> <p>2. Complainants, stockholders of a dissolved corporation, having sued to wind up its affairs and having consented to a decree for a sale of the assets, the proceeds to be distributed among the stockholders, are precluded from showing in a subsequent suit against another corporation that the dissolution was brought about through fraud of such other corporation, as one of the stockholders, acting through its own directors.</p> <p>3. Preferred stockholders agreed that if defendant, another corporation, would guarantee six per cent, dividends on their stock, they would consent to a reduction of their dividends from seven per cent., as fixed by the charter. The stockholders’ agreement required defendant’s agreement to be endorsed upon new stock certificates to be exchanged for old certificates and to be deposited with a trust company. — Sold, that, since the trust company was bound to receive the new certificates and surrender the old, it must be assumed, in the absence of proof, that the trust company' accepted the new certificates from the corporation issuing them, with the form of agreement adopted by defendant and consented to by the other corporation, to carry out the agreement of endorsement, and as a sufficient endorsement under the agreement, that the new cortifieates were accepted by the stockholders as being properly endorsed, that the old certificates were surrendered without objection, and that the previous negotiations cannot be resorted to. to give the endorsed agreement any operation different from that expressed on its face.</p> <p>4. Defendant corporation’s agreement, “guaranteeing” payment of a fixed dividend on stock of another corporation, did not constitute a guaranty', but an independent contract, where it was made in a readjustment of such other’s corporation’s affairs, in which defendant was interested. defendant receiving substantial independent consideration on a consummation of the whole plan.</p> <p>5. A stockholder’s rights do not necessarily depend on the issue or holding of the stock certificate itself, but are rights of which the certificate is the evidence or muniment of title, the certificate not being the property itself.</p> <p>6. A stockholder’s rights, evidenced by a certificate, include the personal rights inherent in a stockholder- as a member of the corporation, as the right to attend meetings, vote, &e., the property right to share in the dividends and in distributions of assets, and the’ rights conferred by law to protect such personal and property rights.</p> <p>7. Dissolution of a corporation terminates a stockholder’s personal, but not his property, rights.</p> <p>8. Defendant corporation guaranteed payment of a fixed dividend on stock in another corporation, so long as the 'certificate of stock should be “outstanding.” — Hold, that a dissolution of such other corporation, and a decree distributing its assets, terminated a stockholder’s right to dividends, under the agreement, the term “outstanding,” as used, meaning “lawfully outstanding,” and the certificate remaining effective only for the purpose of production as evidence of the holder’s right under the decree of distribution. '</p> <p>9. Defendant corporation, by guaranteeing paymgent of a fixed dividend on stock in another corporation, in which it held stock, so long as the guaranteed certificates should be outstanding, ^YtIcTTñdFTmplié3N- Jlgree | that it would nolTexercise its statutory "right as a stockholdir to vote to \ dissolve such other corporation, Decause a dissolution might, terminate | its liability~tnxdei the agiedhient. ° t — 1</p> <p>10. A claim for breach of contract by a corporation is chargeable against its assets on dissolution.</p>

<p>On pleadings and proofs.</p>

<p>On demurrer to petition.</p>

<p>Petitioner’s father, with whom petitioner and defendant lived as husband and wife, forbade defendant the house until he could support his wife, whereupon defendant left, telling petitioner he would send for her just as soon as he could support her. The parting between petitioner and defendant was affectionate, but not so with her father. Within two to four weeks thereafter, defendant wrote petitioner a friendly letter, and subsequently wrote two others, to none of which petitioner replied, on the advice of her father. — Held, not to show desertion by defendant.</p>

<p>On bill for the construction of a will.</p>

<p>Where a husband employs persons to procure evidence of his wife’s adultery on which to obtain a divorce, and such persons set about to procure the defilement of the wife, and by the intervention of such persons the wife is purposely induced to commit adultery, the husband has no remedy, though it is proved that he had not given any distinct orders to such persons to so act.</p>

<p>1. Where testator at the time of his death owned bonds having a market value in excess of their par value, which bonds became a part of a trust fund created by the will, the income of which was- to be paid to a person for life, with remainder over, the entire interest derived from the bonds belonged to the life tenant, and the trustee could not retain such an amount as would, at the maturity of the bonds, equal the premium at which they were valued at testator’s deajh, unless there was a clear indication in the will to the contrary.</p> <p>2. Where a testamentary trust fund to pay the income to a person for life with remainder over was invested by the trustee in bonds, maturing at a date certain, purchased by him at a premium, a deduction should be made from the interest received on the bonds, such as would at their maturity amount to the premium, unless there was a clear direction in the will to the contrary.</p> <p>3. Testamentary trustees had had in their hands the entire trust funds to pay the income to persons for life, with remainder to their children. A part of the funds they erroneously, but in good faith, paid to the life tenants, calling it dividends. Another part they erroneously, but in good faith, withheld from the life tenants, under the name of indemnity fund, to make good wasting premiums on bonds in which the funds were invested. The children were infants. — Held, that the trustees were entitled to recoup themselves out of the fund in their hands under the name of indemnity fund, and, if necessary, out of moneys that might become due the life tenants.</p>

<p>Oil motion for injunction. Heard on bill, answer and affidavits.</p>

<p>1. Equity has no jurisdiction to decree fraudulent wills void.</p> <p>2. Jurisdiction of equity, when properly invoked, must be exercised in the absence of good reason to the contrary based on a definite principle of equity.</p> <p>3. In the absence of objection in limine that the remedy at law is adequate, equity will exercise its jurisdiction unless on its own motion it sees fit to remand the parties to a court of law.</p> <p>4. A bill which alleges that a will and deeds were procured by fraud, and prays that the deeds be set aside, and that the title to the lands disposed of by the deeds and will be revested in complainants as heirs-at-law of the grantor and testator, presents a case for equitable relief so far as the bill prays for the cancellation of the deeds, and, in the absence of seasonable objection on the ground that the remedy at law is adequate, equity will take jurisdiction to that extent, though a court of law in ejectment has jurisdiction to determine the validity of the will and deeds in one action.</p> <p>5. A demurrer to a bill within the jurisdiction of equity on the ground of want of equity is too indefinite to raise the objection that the remedy at law is adequate.</p> <p>6. The rule as to multifariousness in a bill in equity is based largely on considerations of convenience, especially in those cases of multifariousness which are more properly termed “misjoinder.”</p> <p>7. A bill by heirs which alleges that the ancestor was induced by fraud to execute a will and deeds, and which prays for the cancellation of the deeds, and that the title to the lands be vested in complainants as heirs-at-law, is not multifarious.</p> <p>8. A bill by heirs for the cancellation of deeds executed by the ancestor on the ground of fi;aud, which makes heirs whose interests are concurrent with those of complainants defendants without giving any reason for the failure to join them as parties complainant, is 'bad on demurrer, under the rule that all tenants in common should be joined as parties complainant unless some of them refuse to join as complain-ants, in which case they should be made defendants with a proper allegation setting forth their refusal to join as complainants.</p>

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

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

On demurrer to- bill. The bill in this case, which by stipulation is to be treated as filed on the 28th of April, 1908, charges that the defendants were stockbrokers, and that the complainant, between the 11th of April and the 21st of May, 1907, paid the- defendants, in four several amounts, a total of $3,250, which said moneys, it is alleged, were paid by the complainant to- the defendants as margin and as additional margin on complainant’s account with the said defendants;…

<p>1. A separation agreement between husband and wife is not abrogated by the institution by the wife of a suit for divorce.</p> <p>2. A separation agreement between a husband and wife is enforceable only in equity to the extent that it is just.</p> <p>3. While the law does not favor separation between husband and wife, it favors a settlement outside of court of all matters in dispute.</p> <p>4. A wife, under a. separation agreement, which binds her husband to pay to her a weekly sum in full of claims for support and alimony, and which binds her not to demand any other payment, cannot, on obtaining an order for temporary alimony in a suit by her for divorce, recover on the agreement; but she may recover thereon until such order is obtained.</p>

<p>1. The “equal protection of law” required by the constitution of the United States, amended article-14, means equal security or burden under the law to all similarly situated, and the law must bear alike on all individuals, classes and districts which are similarly situated; the purpos'e of the amendment being to prevent arbitrary and capricious laws.</p> <p>2. Under its police power, the state may make regulations to protect the health, morals and safety of the people, which interfere with the conduct of the individual in relation to the public; and the legislative determination as to what is a proper subject for regulation will rarely be reviewed by the courts, but a statute which discriminates without proper basis therefor cannot be sustained under the police power.</p> <p>3. Laws 1908 (P. L. 1908 p. 875 civ. 185 § 2) makes it a misdemeanor for the manager, &c., of any theatre or place where theatrical or vaudeville performances are given, to -admit thereto children under sixteen years old, unless accompanied by a parent, &c., provided that the section shall not apply to entertainments held upon piers devoted to public entertainments. — Held, that the distinction between entertainments in theatres, &c., and on public piers was arbitrary, as making an act criminal in a particular place, which is necessarily a crime elsewhere, if a crime at all, and the section violated the constitution of the United States, amended article 14, guaranteeing the equal protection of the law.</p> <p>4. Laws 1908 (P. E. 1908 p. 875 civ. 185 § 2), making it a misdemeanor to admit children under sixteen years old to theatres, &e., but exempting from its operation entertainments held on public piers, being void because of such exemption, the entire section was void.</p>

On bill for injunction. Heard on bill, answer, replication and proofs. Complainant seeks to enjoin defendant from erecting a build- . ing in such manner as will close up the windows and doors in complainant’s building. Defendant admits his purpose to do so, and claims the right. The north side of complainant’s building is adjacent to the line which separates complainant’s and defendant’s lots.

On pleadings and proofs. The bill is filed by complainant to procure the specific performance of an agreement for the sale of land, made by Firman Dubel in his lifetime.

On petition by Elizabeth Smith against the Hotel Ritz Company to determine whether an unrecorded conditional sale agreement is valid as against a receiver and general creditors of defendant insolvent corporation.

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

<p>On bill for partition. Motion of defendant to dismiss bill.</p>

On motion for a new trial. A feigned issue in this suit directed the law court to ascertain whether the marriage which was celebrated between Edmund B. Ross and Mary Cavanaugh October 24-th, 1873, was a lawful marriage. At the trial in the law court the jury was instructed to return a verdict to the effect that on- the date named Edmund B. Ross was the husband of Maria Moose.

<p>1. Where a special charter provides that the capital stock may be increased from time to time to' any sum, not exceeding a sum named, this limitation on the power of the company is a part of the contract existing between the stockholders themselves and between stockholders and the corporation, and its abrogation against the objection of a stockholder violates the federal constitution, which prohibits the impairment of the obligation of contracts.</p> <p>2. The decisions of the supreme court of the United States are the final authority on questions arising under the constitution prohibiting the impairment of the obligation of contracts.</p> <p>3. The creation of preferred stock by a corporation not authorized by the special act incorporating it, nor under general laws existing at that time, and against the objection of a shareholder, violates the obligation of the contract between the corporation and shareholder.</p> <p>4. Act March 22d, 1860 (P. L. p. 60S), providing that manufacturing corporations might creare two kinds of stock, viz., general stock and special stock, the latter subject to redemption with a fixed half yearly sum or dividend, not exceeding four per cent, before any dividends should be set apart or paid on the general stock, was repealed on April 7th, 1875 (Rev. Stat. 187J/-75 p. 10 § 25), without any reservation of any rights acquired under it, and, even if such act were a part of the charter of a company organized under a special act, it would not authorize the creation of preferred and common stock under a plan contemplating dividends at the rate of seven per cent.</p> <p>5. Act April 6th. 190S (P. L. p. If7). authorizing the creation of new stock by corporations, merely gives the consent of the state that the stockholders may do so if they all agree, but, if all do not agree, such act cannot be held to be a portion of the charter of a corporation organized under a special act or as an amendment thereto.</p>

On final hearing on bill, answer, replication and proofs. The bill in this case is filed to set aside a conveyance made by the complainant to the defendant of an interest in a small tract of land in Middlesex county.

On final hearing on bill, answer, replication and proofs. The bill of complaint in this case is filed by the Sloss-Sheffield Steel and Iron Company, a New Jersey corporation, against the NUtna Life Insurance Company, a Connecticut corporation, engaged, among other things, in issuing policies of the class known as employers’ liability insurance policies, primarily to reform seven policies of liability insurance issued by the defendant to the complainant, and incidentally to…

On final hearing on bill, answer, replication and proofs. The bill in this case is filed for the purpose of enjoining the defendant from polluting the waters of the Yantacaw river and pond.

On final bearing on bill, answer, replication and proofs. Evi A. Martin died in the latter part of 1889. He left a will which was executed on July.9th, 1889, and was admitted to probate on November 12th, 1889.

<p>1. Upon a bill filed by one former copartner against the devisees of another deceased copartner to obtain a decree establishing a resulting-trust in favor of the complainant in respect of a lot of land the title to which had stood in the name of the firm but was afterward acquired by sqch deceased copartner, upon the ground that the purchase by such deceased copartner was with the joint funds of the firm of which the complainant and deceased copartner were members,- and that the purchase inured to the benefit of the, complainant to the extent of an undivided half interest therein, and praying- that the deceased copartner’s devisees be compelled to transfer to the complainant a half interest in the land, and account for all transactions concerning the property since the title was acquired by the deceased copartner, evidence examined and— Held, insufficient to prove the case laid in the bill.</p> <p>2. The burden of proof is on the complainant, very strongly, in view of the circumstance of the death of his copartner, and his not bringing his suit until after such copartner’s death, or until the lapse of about twelve years from the date of the questioned transaction.</p> <p>3. The evidence upon which a court may go to establish a resulting-trust must not only satisfy the burden of proof, but must be clear and convincing.</p> <p>4. The great delay suffered by the complainant in the presentation of his claim to the court not accounted for, and his failure to make any demand upon the deceased copartner in his lifetime, is still another reason why he should be charged with the utmost burden of proving his case thoroughly.</p> <p>5. Inasmuch as the bill will not lie as a bill to enforce a resulting trust, it will not be retained and an amendment thereof permitted, for the purpose of settling partnership accounts, because to change it into a partnership bill would require fundamental changes which -only should be asserted by a new or original bill.</p> <p>6. A dismissal of the bill carries with it the claim for an accounting.</p>

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

<p>On receivers’ petition for leave to borrow money.</p>

<p>On bill to foreclose. On application for surplus money.</p>

On bill, answer, replication and proofs. The controversy in this case relates to the extent of an easement in an alleyway leading from the easterly side of North Warren street, in the city of Trenton, between the property of the complainant on the north, the St. James Day Nursery, No. 136 North Warren street, and the Turkish Bath House on the south, No. 132 North Warren street.

<p>On bill to foreclose. On exceptions to master’s report.</p>

<p>On motion to dismiss plea as slaam and frivolous.</p>

<p>On application for payment of costs, &c.</p>

<p>On bill for partition. On objections to master’s report.</p>

<p>1. A grantor conveyed land to a grantee “and to the heirs of her body,” •on conditions by which the grantor reserved, during the joint lives of himself and wife, the right to possess and enjoy the premises, and, if the grantee should die without leaving any heir of her body, the premises should revert to the grantor, &c. — Held, that the estate conveyed to the grantee was an estate of freehold, but not in possession.</p> <p>2. A grantor conveyed land to a grantee “and to the heirs of her body” on conditions by which the grantor reserved, during the joint lives of himself and wife, the possession and enjoyment of the premises, and, if the grantee should die without leaving any heir of her body, the premises should revert to. the grantor, &c. The grantee, for a valuable consideration, quitclaimed to the grantor. — Held, that, if the conveyance to the grantee created an estate tail, she took but a life interest, so that her conveyance to her grantor created in him an estate only during her life, for under 1 Gen. Stat. 1895 p. 1195 § 11, the freehold conveyed toiler would not ripen into a fee-simple until the limitation over took effect.</p> <p>3. Act March 24th, 1899 (P. L. 1899 p. 531), as amended by act April 9th, 1902 (P. L. 1902 p. 688), providing that a conveyance to a given person without more, shall, unless exception be made therein, convey a fee-simple, if the grantor have a fee-simple, does not apply to a conveyance by a grantor to a grantee and the heirs of her body on conditions by which the grantor reserves during the joint lives of himself and wife the possession and enjoyment of the premises, and, if the grantee shall die without leaving any heir of her body, the premises shall revert to the grantor, &c.</p> <p>4. A conveyance to a grantee “and to the heirs of her body” on condition that, if she shall die without leaving any heir of her body, the premises shall revert to the grantor, if the grantee’s death shall take place during the lifetime of the grantor or his wife, but, if the grantee shall survive both tire grantor and his wife and die without leaving any heir of her body, the premises shall revert to the estate of the grantor, creates an estate for life in the grantee with limitations over by way of contingent remainder, and the rule in Shelley’s Case does not apply; and therefore a conveyance by the grantee to the grantor conveyed only an estate for the life of the grantee.</p> <p>5. The doctrine that an attempt by a grantor to make disposition of his estate after his death, without complying with the requirements of the statute of wills, is void, has no application to a case where the grantor has, by his conveyance, divested himself of his property in his lifetime, but applies to the disposition in his lifetime of property which will be in the donor at the time of his death, the tradition to take place at or after death.</p>

<p>1. S., who owned a majority of the stock of the O. C. Oo., which in turn owned a majority of the stock of the P. S. R. Oo., borrowed $1,250,-000 from the A. S. R. Co., upon a pledge of such stock (among other collateral), under an agreement that the P. S. R. Co. should not be operated during the pendency of the loan. The P. S. R. Co.’s plant, which was practically, but not entirely, completed, was erected for the purpose 'of undertaking the same business as that in which the A. S. R. Co. was engaged. One attempt to borrow money with which to start the P. S. R. Co. was made, and proved abortive. To secure the carrying-out of the agreement mentioned, the board of directors of the last-named company was organized in the interest of the A. S. R. Co., the lender corporation. The P. S. R. Co. was subsequently declared insolvent, and the complainant was appointed its receiver. He filed the bill in this cause to have the A. S. R. Co. declared trustee for the creditors and stockholders of the P. S. R. Co. because of the former’s control of the plant of the latter, and asked that it account for profits alleged to have been made by and through such control. It was proved that the P. S. R. Co. was insolvent when the loan was made; that it never was a going concern, and it was not proved that it could have made profits if it had been operated. — Held, that a case is not made which entitles the complainant, as receiver of the P. S. R. Co., to an accounting in this court from the A. S. R. Co. for profits, as it appears that no profits were made in the transaction.</p> <p>2. Where a corporation, organized under act April 21st, 1S96 (P. L. 1896 p. 277), loaned the owner of a majority of the stock of another corporation a large sum of money, and took from him a pledge of such stock, It was a violation of the third section of such act, providing that no corporation created under the act should possess the power to carry on the business of discounting bills or notes, or of buying and selling bills of exchange, the loan, while not strictly a discounting of the note, was the “buying of a bill.”</p> <p>3. The “banking business,” as defined by laws and customs, consists, among other things, in making loans of money on collateral security.</p>

<p>A testator devised to three children certain real estate upon which there were mortgages at the time of its acquisition by him, which mortgages were assumed and agreed to be paid by him and the amount of which was allowed to him as so much purchase-money. He afterwards made one mortgage upon the premises to secure a debt created by himself. By his will he devised the residue of his real estate to the children mentioned and bequeathed to his widow, in lieu of dower, a sum of money equal to one-third of the value of such real estate, to be paid to her by the children and to be a lien upon the real estate until paid.— 1-Ield, that the value of the lands, to one-third of which the widow is entitled, is the same value as those lands have in the hands of the devisees, that is, that they are entitled to have the mortgage made by the testator paid out of his personal estate in exoneration of the lands, but must accept the lands subject to the mortgages which were upon them at the time of their acquisition by the testator, and which mortgages he assumed. Consequently, the widow is entitled to one-third of the value of the lands, deducting the amount of the mortgage encumbrance created by the testator, but subject to the amount of the encumbrances assumed by him.</p>

<p>S. filed a bill of interpleader in chancery of New Jersey against R. & L. setting up that R. recovered a judgment against him (S.) in the United States circuit court, and that L. had attached the judgment debt in his hands by process out of the Camden circuit court of this state, and prays for an injunction restraining R. from issuing execution against him (S.) out of the United States circuit court on that judgment pending the interpleader suit. — Held, that an injunction will not lie, because the writ, if issued, would be an unlawful interference by a court of a state with the power of a court of the United States to enforce its judgment; the rule being that courts of different sovereignties cannot so interfere with each other even indirectly by injunction operating upon the parties litigant.</p>

<p>.1. In a suit for divorce a mensa et ihoro on the ground of extreme cruelty, if the facts constituting the alleged cruelty are disproved, a decree dismissing the petition of complaint will operate res judicata and be a bar to pleading or proving the same facts in any subsequent suit; but if the facts be true, but insufficient to entitle the petitioner to relief, then a decree of dismissal may be entered without prejudice to the petitioner’s right to plead and prove the same facts in addition to any other or others which may afford the ground of a subsequent suit against the defendant.</p> <p>2. Pacts of this case held to be insufficient in law to entitle the petitioner to relief. — Held, also, that the petition should be dismissed, but without prejudice.</p>

<p>1. A mortgagor is estopped, in a foreclosure suit by the mortgagee’s assignee, to claim a rescission on the ground of the mortgagee’s fraud, where at the time of the assignment he declared in writing that he had no claim, set-off, &e., against the mortgagee.</p> <p>2. Oral as well as written statements by a mortgagor that he has no defences or set-off against the mortgage will estop him to assert one against the mortgagee’s assignee.</p> <p>3. Payment by a mortgagor of interest and his promise to pay the principal after assignment of the mortgage and after he discovered fraud by the mortgagee in obtaining the mortgage would not estop the mortgagor to assert such fraud, since the assignment was made without consideration passing from the assignee to him, and since the payment and promise referred to the original debt, but such conduct warrants an inference that the mortgagor’s attempt to rescind the mortgage results solely from an attempt to defeat foreclosure.</p> <p>4. If, on a mortgagee’s assignee’s suit to foreclose, the mortgage should be rescinded for the mortgagee’s fraud, the assignee would be entitled to a sale of the land as the mortgagee’s land to reimburse him for the price of the assignment.</p> <p>5. In a foreclosure suit by a mortgagee’s assignee, no decree could be had against the mortgagee on the ground of his fraud, where he was not before the court, and no cross-bill had been filed.</p> <p>6. The question of the sufficiency of a mortgagee’s misrepresentations as ground for rescinding as to the mortgagor can be tried in a suit by his assignee to foreclose, on an application for the surplus money, if any be raised by a sale of the land or by other appropriate action.</p>

<p>1. Where lands are conveyed to a trustee with directions to pay the income to one for life, with remainder over, the one entitled to the income is the equitable tenant for life, subject to the duties of life tenant, in-eluding the payment of annual taxes and interest on encumbrances, and, where the trust estate consists in .part of improved property, productive of revenue, and in part of unimproved property producing no revenue, the life tenant must pay the taxes on the unimproved property from the income derived from the revenue producing property, so far as such income extends. .</p> <p>2. Testatrix devised unimproved and improved real estate to a trustee to pay the income to a daughter for life, with remainder over; declared that the provisions respecting the payment of rents derived from the unimproved property and respecting the vesting of such property if unsold or the proceeds thereof if sold should be subject to the payment of all encumbrances existing on such property; and authorized the trustee to pay such encumbrances either from the proceeds of such property or from the income thereof. — Held, that the person entitled to the income for life must pay out of the income derived from the improved realty the taxes assessed against the unimproved realty and the interest on the encumbrances thereon.</p> <p>3. A trustee under a will whereby testatrix devised her improved and unimproved realty to the trustee to pay the income to his wife for life, with remainder over, and whereby she declared that the rents from the unimproved property and the proceeds thereof, if sold, should be subject to the payment of encumbrances, filed his account as trustee and credited himself with the payment of interest on the encumbrances on the unimproved property and taxes thereon accruing after the death of testatrix. The remaindermen excepted to such items on the ground that it was incumbent on the life tenant to pay such interest and taxes. — Held, that the costs incurred by the remaindermen in the orphans court were properly payable out of the estate, but the estate should not be burdened with the costs of the appeal by the trustee from the decree sustaining the exceptions to the account, for such appeal was in the interest of the trustee individually or in the interest of his wife.</p>

<p>On appeal from a decree of distribution made by tile Burlington county orphans court.</p>

<p>The rule laid down in the case of Weir v. Granite State Provident Association, 56 H. J. Eq. {11 Dich.) 884, approved by this court in Harris, Receiver, v. Hevins, 68 N. J. Eq. (3 Robb.) 684, does not apply to mortgage debts of borrowing' shareholders of building and loan associations that became due not by the insolvency of such association but according to the terms of such mortgages and under the by-laws of the association by the default of the borrower himself prior to the insolvency of the association. As to debts thus due and collectible by the association as a going concern a receiver afterward appointed proceeds in like manner as the directors of the association might have done if insolvency had not supervened.</p>

On appeals of complainant-defendant Annie E. Travers, and defendant Sophie V. O’Brien, from a decree of the court of chancery advised by Vice-Chancellor Bergen, who delivered the following opinion: “James Travers died November 1st, 1883, testate, leaving him surviving a daughter, Anna E. Travers, and a widow, Sophie Y. Travers, who on August loth, 1889, married William H. O’Brien, how deceased.

<p>On appeal from a decree of the court of chancery, reported in 71 Ml. Rep. 687.</p>

<p>1. Where the general manager of a street railway company in charge of its affairs knows of negotiations pending between its attorney and the opposite party for the compromise of a litigation, and orders settlement, making no objections to the terms, and the company accepts the benefit of the settlement by seeking to enforce it, this will be tantamount to a ratification of the compromise by the company.</p> <p>2. It is the general rule that an attorney without special authority is not authorized to' compromise his client’s claim. There is, however, no objection to giving an attorney special authority to compromise, in which case the attorney, in agreeing to the compromise, would bind his client.</p> <p>3. A special authorization from a client to an attorney to compromise a suit at law is not a privileged communication.</p> <p>4. The only elements necessary to a valid agreement of compromise are the reality of the claim made and the iona fides of the compromise. The court will not inquire into the adequacy or inadequacy of the consideration of a compromise fairly and deliberately made.</p> <p>5. An accord that is unexecuted is not an available defence at law against the original cause of action, but it may in a proper case become available as an equitable defence thereto.</p> <p>6. The parties to a suit at law having entered into an agreement of compromise lawful in character at its inception, by. reason whereof the defendant was induced to change its position by discharging its witnesses and surrendering its right to go to trial at the time when prepared, and the plaintiff thereafter having repudiated the contract, and later having moved the cause for trial, the plaintiff will be enjoined from prosecuting his suit at law upon defendant’s paying into court for the benefit of the plaintiff the money which by the terms of the compromise the plaintiff was bound to accept.</p> <p>7. A tender to one who announces in advance that he will not accept it is unnecessary.</p> <p>8. Under the circumstances recited in the opinion, the complainant was not in laches in filing his bill.</p>

<p>On appeal from a decree of the chancellor, whose opinion is reported in 70 Ml. Rep. 922.</p>

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

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinion is reported in 7á? N. J. jHq. (¡2 Bucli.) If-S.</p>

<p>Oil appeal from a decree of the court of chancery, reported in 73 N. J. Eq. (3 Buch.) 487.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 71 All. Rep. 417.</p>

<p>On appeal from an order of the court of chancery advised by Vice-Chancellor Plowell, whose opinion is reported in 71 Ail. Rep. 60S.</p>

<p>On appeals from decrees of the prerogative court, reported in IS N. J. Eq. (S Buck.) 62J, 61¿.</p>

<p>On appeal from a decree of the court of chancery advised by Vice-Chancellor Emery, whose opinions are reported in 72 N. J. Eq. (2 Buck.) 187, and 78 N. J. Eq. (8 Buck.) 488.</p>

<p>On appeal from a decree adVised by Vice-Chancellor Stevenson, whose opinion is reported in 73 N. J. 1Hq. (3 Buck.) 187.</p>

<p>'On appeal from a decree of the court of chancery advised by Vice-Chancellor Stevens, whose opinion is reported in 68 N. J. Eq. (2 Robb.) 189.</p>