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same manner as before, with severity and harshness, and on several occasions with violence, until the evening of the 3d of August, when they separated, as before stated. The circumstances were as follows: Previous to that, to wit, on the last of July or the first of August, W. F. S., with whom the defendant, in his Dakota suit, charged the complainant with having committed adultery, and who had been in the employ of the defendant for several years in his store in New Brunswick, left him suddenly; and on the evening of the 3d of August a Mr. Viereck, who was a tenant and customer of the defendant, called at his place of business. The subject of Mr. S.'s leaving came up for discussion, and it appears that prior to that Mr. Viereck had, at an interview at defendant's store, said to the defendant something to the effect that when, on a previous occasion, he discharged another employé, he should also have discharged Mr. S. Mr. S. had called on Viereck and complained of him on that account, and now Mr. Viereck mentioned the matter to defendant. Naturally, the question arose as to how Mr. S. had heard what Viereck had said. The defendant thought that Mr. Viereck had been overheard by somebody who had repeated his remark to Mr. S., and it was suggested that the complainant was such communicant. The complainant, who had been out marketing, came into the store, and overheard the latter part of the conversation between her husband and Mr. Viereck, and immediately said it was a lie. Angry words passed between them, and finally the defendant said to complainant that she could not deny but that she had on a certain occasion been in the front parlor upstairs with Mr. S. early in the morning, while defendant was in bed asleep, and, in substance, as understood by Mr. Viereck, charged her then and there with adultery with Mr. S. This intensified the situation. The complainant denied the charge, and charged her husband with lying. He struck her in the face with his straw hat and with a newspaper. She struck him, first with a fish which she had just been buying for breakfast, and then with a pocketbook which she held in her hand, and whose steel clasp scratched his face and drew blood. The parties were separated. The complainant left the house, and defendant shouted after her, and sent word to her by his son that she could not come back again. She went to her father's house. Three days afterwards the husband said to the son, who was working for him in his store, that he must decide whether he would go with his mother or stay with him. The son decided to go with the mother, and left. The husband then sent word to the wife to take away her clothing, but, before delivering it to her, mutilated each piece of it thoroughly with a knife or scissors, or other sharp instrument, so that a large number of costly female garments of all kinds were utterly destroyed, and in that condition sent to the wife. I stop here to say, before inquiring

closer into the merits, that it seems to me that, if the complainant's bill had been framed under the twentieth section of the statute (2 Gen. St. p. 1270), little or no defense could have been made to it. But the question remains as to which party is, in the view of a chancellor, blamable for the situation as it stood on the 3d of August, 1896. The evidence is overwhelming that the defendant at that time, and for some time previously, desired to be rid of his wife. His own testimony on the stand, and the letters which he wrote her, show this; and his action in attempting to procure a divorce from her, though occurring after bill filed, throws a light upon the state of his mind at the time in question.

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Now, first, as to the cause of the complainant's drinking, and the extent of it. I think the extent of it and the effect of it have been overstated by the witnesses of the defendant, -some of them highly respectable and intelligent. She had never acquired what is known as the "rum disease,' or that appetite for spirits which cannot be overcome except by actual restraint. The physician in whose charge she was at Westport was sworn, but failed to show that during the 10 days that she was with him she showed any desire at all for drink, or that he prescribed it for her. She came back to her sister's, in Jersey City, who, with her husband, are quite respectable, and entirely reliable as witnesses. She manifested no desire for drink there. She had none. They kept none in the house. She still had the dropsy. The doctor who was called in found her kidneys in a condition to account for ner dropsy, but there was no organic disease or lesion, such as results from excessive and long-continued use of spirits. He attributed their condition to causes other than that of intoxicants, viz. nervousness and mental worry. He treated her in the ordinary way, and she entirely recovered, and his decided opinion is that her condition was not due to the excessive use of intoxicants. Again, some time after leaving her husband, in August, 1896, she took up her abode with her sister and brother-in-law in Jersey City, and has lived there ever since. The testimony is clear and convincing that she has never indulged in any alcoholic stimulant or any substitute, or manifested any desire therefor. Her appearance on the stand was that of a perfectly temperate person; and those witnesses who testified that they had previously seen her showing the signs of continued intoxication while living with her husband, and who saw her on the stand, declared that she was a different woman. Now, I think it is quite in accordance with common observation and experience that persons who have acquired a strong and deep-seated taste for intoxicants do not drop their use so easily as complainant seems to have done. That she did sincerely grieve for the loss of her husband's affection, and on account of his treatment of her, is established to my entire satisfaction. Her sister swears that while

stopping with her in January and February, 1896, she was at all times sad and melancholy, and frequently in tears. Again, she had been from the time of her marriage up to the year 1892-93-a period of 14 yearsconstantly subjected to the temptation to drink. There is not a particle of evidence that before the date last mentioned she had ever overindulged to any extent, and, I repeat, the parties had lived as affectionate and loving husband and wife. The affection of the wife for the husband was a matter of remark with their acquaintances. Again, the fact that she was drinking too much was first called to the attention of the defendant by the family physician in the year 1893. He was called in to see the complainant, who was ill, and informed her husband that she had been drinking too much. The husband swears that he had never previously suspected it. He knew, as we have seen, that she was subjected daily to the temptation to drink, and had been so subjected from the time of their marriage, not only in connec tion with the selling of beer and spirits to customers, but also by the placing of beer and wine constantly upon the family table, and she was constantly partaking of it in a moderate degree. This is testified to positively by the husband, with the additional statement that the doctor informed him that the cause of her excessive drinking was that she suffered with the usual female diseases known as "weakly complaints," and that it was a common thing for women so afflicted to indulge either in narcotic or alcoholic stimulants, and that she was not at all to blame for it; that at that time-1893-her drinking had not caused any disease, but had been caused by disease. It was the effect, and not the cause. It will thus be seen, from the defendant's own account, that the desire to drink, so far as it existed, was one for which the complainant was hardly responsible. It was not her fault, but, rather, that of the husband, that she was subjected to the temptation; and it was not her fault, but, rather, that of disease, that she acquired the desire to drink to excess. Now, just at that time, namely, in 1893, the husband swears that she was afflicted with hemorrhage of both the nose and the bowels; that her breath became offensive, and her whole person became so disgusting to him that he refused to cohabit with her, and, as is plainly inferable from all the evidence, refused to have sexual intercourse with her. Then the evidence satisfies me that he was of high, quick, and uncontrollable temper, and when irritated quite violent, not only in his language, but in his action. Now, it is at just about this time1893-that we have intervening the established fact that the husband was consorting with other women, and on several occasions had acquired a venereal disease; that he did not deny it to his wife, but boasted of it. And then we have the further established fact that he desired to be rid of her, and refused to live with her except upon terms of her

absolute reformation in the matter of drinking; and yet, when she came home from her sister's, in March, 1896, he took no measures to keep her from temptation, but required her, as a matter of pure exercise of will, to refrain. At the same time he refused her the love, affection, and offices of a husband. Now, taking the whole case together, I think it is fair to infer that the loss of his affection, his positive neglect of her, and his attention to other women, was a very efficient, if not the sole, cause of the yielding of the complainant to the temptation to which she was exposed, and that under the circumstances the fact that she did drink too much, and became irritating and unpleasant in her manner, was no excuse for the husband's conduct and treatment of her. It was, in my judgment, his duty to have provided her a home where she would receive and enjoy his loving attention, and not be subjected to the temptation to drink. Now, to meet this very suggestion, the defendant swore that he offered to do that; that he offered to furnish her a home separate from his business. She admits on the stand that he did so offer, but testifies that it was upon the condition that he was not to live with her; that she was to live there alone, separate from him. In other words, he offered her a separate establishment, without his society or love. This, in my judgment, she was not bound to accept. If in March, 1896, when he found that she had substantially recovered from the effects of her previous excessive drinking, instead of laying down the hard rules which he swears he did, upon which he would permit her to return to his house, he had said to her, "I will furnish you a home separate from my business, and will live with you as your husband, and love and cherish you, and will abstain from indulgence with other women, and give you my whole heart and strength," and she had refused that, a different case would have been presented. But it was quite manifest that after the year 1893 he never did act the part of a husband towards her, and never intended so to do,-had lost all love for her, and was maneuvering, so to speak, to get rid of her. The result is that I am unable to find in the unfortunate taste which complainant had acquired for intoxicants, and her moderately excessive indulgence therein, any excuse for the harsh treatment which she experienced from her husband. On the contrary, I think that, under the peculiar circumstances of this case, it cast upon him the duty to treat her with unusual kindness and consideration. Then I think that the unwarranted charge of adultery with Mr. S., made in the presence of their son and servant and Mr. Viereck on the evening of the 3d of August, was dastardly in the extreme, and is of itself an act of cruelty. The vindictive and mischievous disposition of the man is manifested by his wanton and deliberate destruction of his wife's wardrobe. Upon the whole case, I come to the conclusion that the defendant was from the year 1893 guilty of a

continual course of conduct towards his wife which amounts to extreme cruelty. I think that her health and life would have been endangered by a continuance of it. The danger would have arisen not only from mental worry and strain over his neglect of her, but from a liability to acts of physical violence, due to his quick and ungovernable temper. Of course, her return to him in March of 1896 was a conditional condonation of his previous cruelty. But, as we have seen, there was no change in his treatment of her. A close examination of the evidence will show that it was more rigorous, if anything, than before, and was attended with the usual disposition to physical violence, and occasionally actual violence. I will therefore advise a decree in favor of the complainant.

The remaining question is as to the amount of alimony. The defendant is possessed of considerable real and personal property. A low estimate put upon it in his affidavit in answer to the application for alimony pendente lite made his total worth $33,000. He owns valuable real estate in New Brunswick, -all subject, however, to mortgage,-and he has considerable personal property in the shape of cash assets. He swears that pending the suit be lost a matter of five or six thousand dollars in stock speculations in Wall street. And then he has been to considerable expense in his visit to Dakota, and the cost of the divorce proceedings there, and the litigation in this case, and two trips which he has made to Europe since the suit was brought. But he still has considerable personal property. His net income from his real estate is about $2,000, and there should still be an income from his personal property, added to that, of two or three hundred dollars a year. They have but one child, who is now supporting himself. The husband is not in robust health, but still quite able to attend to business and earn a living. The wife is somewhat shattered in health, but also able to do something for a living. In that respect they stand on an equal footing. She has been, undoubtedly, an industrious and energetic woman, and has contributed materially by her personal efforts and labors to the accumulation of the defendant's fortune, particularly in the first years of their married life. The evidence is full in this respect. Not only while he was in the retail business, but after he entered into the whole sale business, she gave personal attention to the business of the sales department. For these reasons she is entitled to a liberal share of his income. But at the same time it is best that the allowance should be fixed at an amount which the husband can safely pay, and can without difficulty secure to her. Taking all things into consideration, I think that $16 a week will be a fair allowance, and one not overburdensome upon the defendant. This must, of course, be permanently secured to her. The defendant must pay the costs and a counsel fee, to be fixed after hearing counsel.

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1. A mortgage will be decreed to be foreclosed against the devisee of the mortgagor, although there has been in fact no payment of either principal or interest for over 20 years, when it is shown that the mortgagor and owner of the equity of redemption was also the sole surviving executor of the will of the deceased mortgagee, and the only person who, during the period of defaults in making the payments which came due on the mortgage, could have taken any steps to collect either the bond or mortgage.

2. When a mortgagor and owner of the equity of redemption, who is also the sole surviving executor of the mortgagee, falsely, and without the knowledge or assent of the legatees who are entitled to the benefit of the mortgage, for his own profit certified the mortgage to have been paid, his certificate will be taken to have been an acknowledgment that up to and at the time it was made the mortgage had been an existing lien on the mortgaged premises; and the cancellation of the mortgage record will be held to have been fraudulently made, and nugatory, when set up as a defense against the mortgage by his devisees of the equity of redemption.

(Syllabus by the Court.)

Suit by Christopher Stimis, administrator, against John B. Stimis and others. Heard on bill to foreclose answer and proofs. Decree for complainant.

The complainant is the administrator cum testamento annexo of John Stimis, deceased, and the defendants are the children and devisees of his son Henry Stimis, also, deceased, who, in 1851, made to the father the mortgage herein sought to be foreclosed. The mortgage covered lands in Essex county, and was, in the year of its date, duly recorded in that county. John Stimis, the mortgagee, died in 1851, testate. By his will he gave his estate to his widow for life, and after her death to his three sons and four daughters and the two sons of a deceased son. His widow, Ann, and his son Henry were appointed executors of his will, which was duly probated, and the executors qualified. In February, 1852, an inventory of John Stimis' estate was filed by the executors, in which appeared the item, "Henry Stimis, bond and mortgage, $500.00." In 1872 the widow died. In 1887, Henry Stimis, as executor, executed and recorded a certificate of the satisfaction of the mortgage. In 1891 he died. The executors never accounted. The bill charges that in fact no part of the principal was ever paid, and no interest since the death of Ann Stimis; that in 1891 Henry conveyed two portions of the mortgaged property to Susan E. Burling, one of the defendants. The complainant was appointed administrator de bonis non of John Stimis in May, 1892. Ever since the execution of the mortgage, the mortgagor and his devisees have retained possession of the mortgaged premises. The prayer is that the

satisfaction of the mortgage be decreed void, and the equity of redemption in the mortgaged premises foreclosed. A demurrer was filed to this bill because it showed that more than 20 years had elapsed since the making of the mortgage, within which time no part either of principal or interest had been paid. This demurrer was overruled by Chancellor McGill (54 N. J. Eq. 17, 33 Atl. 468) upon the ground that the presumption of payment which in such cases is raised was rebutted by the explanatory circumstance that the executor (who was the mortgagor) had failed to account; that he was a member of, and closely connected with, the family to whom the mortgage was payable; and that he had, as executor, entered a satisfaction of the mortgage, and thereby recognized its continued existence, within seven years before bill was filed, and that this certificate of satisfaction was false and fraudulent. Since the demurrer was overruled the defendants have filed their joint and several answer, denying any knowledge of the debt, the bond and mortgage, and the acknowledgment and recording. It denies any personal knowledge on the part of the defendants of the inventory filed by the executors of John Stimis. It denies that the estate of John Stimis remained wholly unsettled upon the death of Henry, and that the defendants have any personal knowledge of the satisfaction of the mortgage. The answer alleges that no principal or interest was ever paid by Henry Stimis on the mortgage to John Stimis, or his widow, Ann, and that neither John nor Henry ever recognized the existence of any such mortgage, nor did John or Ann ever demand a payment of any part of the principal or interest; and it further sets up that the common-law period of limitation has run against the enforcement of the mortgage, if the mortgage ever had any existence, and that the mortgage cannot now be foreclosed. It is further set up in the answer that, if the mortgage ever had a gal existence, a foreclosure cannot be had without an accounting of the estate of John Stimis, and ascertainment thereby of what was due from Henry Stimis, as executor of the will of John, to the devisees named therein; that, if there was such an accounting, it would be found that Henry Stimis had paid to the devisees, under the will of John, all that was due to them from the estate; and the law would presume such payments, even if the same could not be proved. The answer also alleges that the complainant administrator had made application to the orphans' court of Essex county for a settlement of the estate of John Stimis, in which application the executor of Henry Stimis was required to show cause why he should not account for the estate of John Stimis, which had come into his possession as executor of Henry, which matter was still pending before the orphans' court undetermined; and that no foreclosure can be had until the orphans' court has first ascertained whether

Henry was indebted to the devisees under the will of John Stimis.

Herbert Boggs, for complainant. Coult & Howell, for defendants.

GREY, V. C. (after stating the facts). The overruling of the demurrer is, in effect, a determination that, if the allegations of the bill are sustained by proof, the complainants are entitled to the relief for which they pray. As the answer denies these allegations, the burden rests upon the complainant to establish them. That the mortgage constituted part of the estate of John Stimis, deceased; that Henry Stimis, the mortgagor, was his son; that the life tenant of the mortgage was Henry's mother, and the remainder people were his brothers and sisters; that Henry was one of the executors of his father's will; that the executors inventoried the mortgage as part of their testator's estate; that they never filed any account; and that in 1887 Henry Stimis, being himself the mortgagor, acknowledged and entered satisfaction of the mortgage as executor,-is, I think, fully established by the proofs. The chancellor held, on the argument of the demurrer, that, taking these incidents to be true, they rebutted the presumption of the satisfaction of the mortgage arising from the nonpayment of any part either of principal or interest for over 20 years. The proofs submitted on the hearing go much further than the allegations in the bill to establish the existence of the matters set up in the bill as explanatory of the nonpayment of either interest or principal. That the mortgage was part of the assets of the estate of John Stimis, and passed under his will, is proven without denial. So it is undisputed that Henry Stimis accepted the execution of the will, and proved it, and filed the inventory of the estate in which this mortgage was listed. He certainly never would have done this if the mortgage had not been a living asset. In this situation of affairs Henry became, as to this mortgage, a trustee, bound to carry into effect the testator's disposition of it. A proper observance of his duty would have led him to have paid the debts, stated. his account, and to have transferred the mortgage to his mother, Ann Stimis, to whom the testator bequeathed the residue of his estate (of which this mortgage formed a part) for life, or durante viduitate, and to his brothers and sisters in remainder. This was never done, and the obligation on Henry's part to complete this trust remained undischarged up to the time of his death, in 1891. The influences which led Henry Stimis to this breach of his duty and to the nonpayment of anything on the mortgage for over 20 years are fully exhibited in, the proofs. It is shown that he was during a considerable portion of this 20 years of nonpayment quite straitened in his financial capacity, and that, though he had some real estate, he was unwilling to realize upon it, and pay his debts, preferring to hold for higher prices, in which

he appears to have been disappointed. Sales were made of some lands which came to Henry and his brothers and sisters, of the proceeds of which Henry had his share. This was a year or two after Ann Stimis' death, in 1872,-probably about the year 1874. He excused himself then from settling this mortgage in terms which recognized its continued obligatory effect, and appealed for delay to the consideration of the family. During the period from this time up to 1887, the date when he executed and recorded the satisfaction on record of the mortgage, he "pleaded poverty," and the reason why payment was not enforced was thus described by one of his brothers: "Because it would have put Henry in such a plight that he would never have gotten over it." At this period (1887) Henry's financial situation was such that his taxes had been unpaid for a number of years, and had accumulated to the amount of $600. He was so pressed that he was obliged to borrow this money by mortgaging the premises now sought to be foreclosed, and in order to do that was compelled to remove the preceding incumbrance of the mortgage now in suit. He could not pay it as mortgagor, but as executor he still had a control over the record of the mortgage by which he could apparently satisfy it, and thus borrow the money he needed. He was sole surviving executor. He had never filed any account, nor obtained release from those entitled at his hands as executor to a settlement of the estate. He does not appear to have asked any of the remainder people to aid him by consenting to the cancellation of the mortgage. At this time (1887) the actual possession of the mortgage was probably held by Henry's sister Eliza. If Henry had attempted to get possession of it, so that the seals might be taken off, and the mortgage, in this condition, be exhibited to the register to be canceled of record, it would probably have excited suspicion. The mortgage record still stood with John Stimis as mortgagee and holder of the mortgage. The only person who could thus canIcel it was Henry Stimis, acting as sole surviving executor, etc., of John Stimis.

It was

easy, without actually producing the mortgage, to make and record a certificate of payment, and in this way to discharge the lien of the mortgage. Henry did execute and acknowledge a separate certificate that the mortgage was "paid and discharged." This certificate of discharge was recorded in July, 1887, the new mortgage was given to Mrs. Howell, and the mortgage money raised upon it was used to pay the $600 arrears of taxes which Henry owed. These several incidents were really but a single transaction, although they happened several weeks apart. All of them were brought about to enable Henry to get the money to pay his arrears of taxes. This action of Henry Stimis, as executor, in falsely certifying that the mortgage had been paid, and in recording the certificate, without the assent of his brothers and sisters, the beneficiaries of the mortgage, was, as between

them, fraudulent, and a clear breach of his duty as executor, and was wholly nugatory to discharge the mortgage. But it also defeated its own object, for Henry's action was a distinct recognition of the continuance of his own status as executor with power to satisfy the mortgage, and of the fact that the mortgage record was still notice of an existing lien.

The evidence also shows that, even after this discharge of the record of the mortgage, Henry acknowledged to his brothers and sisters the continued obligation of the mortgage, and his purpose to settle it, and kept them in ignorance that by his certificate he had discharged the record. Their entire good faith is shown by the undisputed proof that in 1891 they caused notice to be given to Henry's grantee of part of the mortgaged premises of proceedings to be taken to collect the mortgage. Henry was alive at this time, though sick, and confined to his house. The grantee was his daughter Mrs. Burling. Her husband brought this letter over to Henry, and he then knew that the remaindermen had started to enforce payment of the mortgage. Christopher Stimis, the complainant, one of his brothers entitled to share in the mortgage, called on Henry after Mr. Burling had brought this letter to him. There is no attempt to show that Henry, then or at any other time, ever to Christopher, or to any of the remainder-men, either disclosed that he had certified the discharge of the mortgage and recorded it, or claimed that he had in fact paid it. The counsel for the defendants insists that the mere expiration of 20 years during which there has been no payment on the bond or mortgage, no matter for what cause, raises a conclusive presumption that the bond and mortgage have been satisfied, and that Blue v. Everett, 56 N. J. Eq. 455, 39 Atl. 765, in the court of appeals, is final authority that a bill cannot be maintained in this court to foreclose such a mortgage. It is unnecessary to examine, in the present case, the judgment rendered in Blue V. Everett, as to the operation upon a bond and mortgage of the presumption of satisfaction arising from nonpayment of the bond for 16, or the mortgage for 20, years. The very case of Stimis v. Stimis now under consideration was mentioned by the learned justice who delivered the opinion in Blue v. Everett as one of those in which, because the mortgagor was also the executor of the mortgagee, an independent equity was raised in favor of the life of the mortgage against the consequence of the nonaction of the executor mortgagor to enforce its payment, notwithstanding the mortgage might otherwise have been presumed satisfied by the application of the statute of limitations. It must be remembered that Henry became one of the executors of his father's will, and as such joined in an inventory in which this mortgage was listed as part of the estate; that he continued to hold his trust as executor during the whole period of the defaults in payment, of

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