Argued November term, 1915, before GAR RISON, TRENCHARD and BLACK, JJ.

Michael J. Tansey, of Newark, for appellants. John W. McGeehan, Jr., of Newark, for respondents.

BLACK, J. This is an appeal from the judgment of the Essex circuit court striking out the plaintiffs' complaint and entering judgment in favor of the defendants.

and fraudulent conduct of the defendants. Then there is a further allegation of fact, stating a method by which the deficiency was to be ultimately paid.

[1-3] The question for solution then is, admitting the truth of the plaintiffs' allegations and every inference of fact which can be legitimately drawn therefrom, in law: Are the plaintiffs precluded from maintaining their action, or have the defendants waived or been estopped from their right to plead the statute of limitations to such action?

[4] A waiver is an intentional abandonment or relinquishment of a known right. The intention may be shown by conduct as well as Mere silence at a time by express words. when there was no requirement to speak is not a waiver, nor evidence from which a

waiver may be inferred. Armstrong v. Insurance Co., 130 N. Y. 560, 29 N. E. 991. Waiver belongs to the family of estoppel, and often they are convertible terms. Maloney v. Northwestern Masonic Aid Ass'n, 8 App. Div. 575, 40 N. Y. Supp. 918, 921. In strictness, however, the term "waiver" is used to designate the act, or consequence of the act, The ground on which the court rested its of one side only, while the term "estoppel" action was that the facts set up in the plain- (in pais) is applicable, where the conduct of tiffs' complaint, if true, were not sufficient one side has induced the other to take such a in law to constitute a waiver by the defend-position that he will be injured if the first ants of their right to plead the statute of lim- be permitted to repudiate his acts. McCoritations to the plaintiffs' complaint, or such mick v. Orient Ins. Co., 86 Cal. 260, 24 Pac. as to operate as an estoppel against them. 1004. The complaint alleges the suit was to recover The requisites of an estoppel are pointed a deficiency on a bond after foreclosure and out in the case of Richman v. Baldwin, 21 sale of mortgaged premises. The facts per- N. J. Law, 403, and it is there said that the tinent to this inquiry are contained in the doctrine of equitable estoppel has been adoptsixth paragraph of the plaintiffs' amended ed and applied to courts of law in relation complaint, in which it is alleged: That the to personal property, in which cases no techplaintiffs did not begin suit as required by nical formalities intervene to prevent its law within six months after the sheriff's sale, application. So in Phillipsburg Bank v. Fulbecause defendants, when notified that suit mer, 31 N. J. Law, 55, 86 Am. Dec. 193, to would be commenced against them on their constitute an estoppel in pais there must be bond for the amount of their deficiency, start- an admission intended to influence, or of ed negotiations to settle the claim, and thus such a nature as will naturally influence the prevented suit. That the offer of the defend- conduct of another, and so change his condiants was accepted, and the plaintiffs were tion as materially to injure him if the party thereby induced to believe that the defend-making it is allowed to retract it. For othants would pay and satisfy the deficiency er illustrative cases in our common-law according to the offer. These negotiations courts, see Quick v. Corlies, 39 N. J. Law, continued from December, 1914, to March, 11; Freeholders of Somerset v. Veghte, 44 1915, inclusive. The plaintiffs were induced N. J. Law, 509.

to refrain from beginning suit within the time We think the ruling of the trial court in required by the statute, and from filing notice striking out the plaintiffs' complaint and enof intention to begin such suit in accordance | tering judgment for the defendants was erwith statutory requirements, in the belief ror. The allegations made in the complaint, that the defendants were making every effort if proved to be true, would make a jury questo carry out such offer and proposal. The said defendants acted falsely and fraudulently and with a corrupt intent of misleading the said plaintiffs to defer their suit until the statutory time had expired. That the plaintiffs were, in fact, misled by the false

tion, and it would then be for the jury at the trial, under proper instructions by the court, to determine whether there was a waiver by, or an estoppel of, the defendants.

The judgment of the Essex county circuit court is therefore reversed.

(85 N. J. Eq. 372)

JUNG v. JUNG. (No. 39/234.) (Court of Chancery of New Jersey. Dec. 8, 1915.)

DIVORCE 329 ANNULMENT OF FOREIGN

DECREE-STATUTE.

Under Divorce Act (2 Comp. St. 1910, p. 2041) § 33, providing that full faith and credit shall be given to another state's decree of divorce, except that if any inhabitant of the state shall go into another state, territory, or country to obtain a divorce for a cause occurring while the parties resided in New Jersey, or for a cause not ground for divorce under its laws, a decree so obtained shall be of no force in New Jersey, where a wife went to Reno, Nev., to procure a divorce for extreme cruelty occurring in New Jersey, and was guilty of fraud upon the court of Nevada in procuring a divorce before she had been a bona fide resident there for a year, as required by statute, such Nevada divorce will be annulled in New Jersey on the bill of the husband.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 835-838; Dec. Dig. 329.]

Bill between Gottlieb Jung and Minnie Jung. Decree for complainant.

William Harris, of Camden, for complainant. William J. Kraft, of Camden, for de fendant.

BACKES, V. C. The object of this bill is to annul a Nevada divorce on the ground of fraudulent imposition upon the court of that state. At the time the petition for divorce was filed, the Nevada statutes required a bona fide residence in the state, of the plaintiff or defendant, of not less than one year next preceding the commencement of the action, to confer jurisdiction upon its courts. Statutes of 1913, p. 10. The complainant and defendant in this cause lived in matrimonial relations in Camden county in this state, from the time of their marriage in June, 1885, until July 13, 1913, when the defendant went to Reno, Nev., arriving there on August 5th. One year and two days there after she commenced suit for divorce, setting up extreme cruelty. Service of process was by publication and service in this state. Divorce was granted September 29, 1914; the defendant returned to New Jersey in October following. At the time the defendant left New Jersey, she owned, as she still does, improved realty in Camden. This she left in charge of an agent, with the request to take care of it until she returned. She called upon her insurance agent to attend to renewals of fire insurance, which would expire during the period of her proposed ab

sence.

On the witness stand, she frankly confessed that her only purpose in going to Nevada was to obtain a divorce; that she had never been West before; and that when she started she did not know where Reno was. After she arrived, she took board at a hotel and remained for eight days, and then started housekeeping in a four-room dwelling, which she furnished at an expense of about $100. After living in keno six months, she says her health so improved that she concluded to remain permanently, and then consulted counsel in her divorce matter. Section 33 of the Divorce Act requires:

"Full faith and credit shall be given in all courts of this state to a decree of annulment of marriage or divorce by a court of competent jurisdiction in another state, territory or possession of the United States when the jurisdiction of such court was obtained in the manner and in substantial conformity with the conditions prescribed in sections five, six and seven of this act."

Our Court of Appeals has held that: "Where the plaintiff in a cause is required by statute to have been a bona fide resident of the state in which his action is brought for a fixed period of time, in order to enable him to maintain his action, the ascertainment by the court of the fact of such residence necessarily precedes a consideration of the merits of the case, and the determination of that question by the court is final not only in the courts of that state, but in every other jurisdiction where the validity of the judgment comes in question, unless such determination has been procured by fraud." Magowan v. Magowan, 57 N. J. Eq. 322, 42 Atl. 330, 73 Am. St. Rep. 645; Fairchild v. FairRep. 650; Miller v. Miller, 66 N. J. Eq. 436, child, 53 N. J. Eq. 678, 34 Atl. 10, 51 Am. St. 58 Atl. 188.

It is proved beyond peradventure that, at the time the divorce suit was commenced, the defendant was not a bona fide resident of Nevada for the required statutory period, and that the determination by the court of that state of the fact of residence, as recited in the decree, was procured by fraud. The proviso to the thirty-third section of the act above referred to reads:

"That if any inhabitant of this state shall go into another state, territory or country in order to obtain a decree of divorce for a cause which occurred while the parties resided in this state, under the laws of this state, a decree so obtained or for a cause which is not ground for divorce shall be of no force or effect in this state." Comp. St. 2041.

The motive of the defendant and the ground upon which she secured the divorce, bring the case directly within the language of the statute. The complainant is entitled to a decree.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

2. HUSBAND AND WIFE 205-ACTION of the right originated through the marital relaWIFE AGAINST HUSBAND.

SAVAGE, C. J. This bill in equity is brought by a wife against her husband. She [Ed. Note.-For other cases, see Dower, Cent. alleges in her bill that her husband, being Dig. §§ 6, 7; Dec. Dig. 4.]

about to execute and deliver a deed of cer7. DOWER 35 RIGHTS OF ACTION BE-tain of his real estate, requested her to sign TWEEN HUSBAND AND WIFE-BILL FOR IN

plaintiff that the said deed had reference" | Laws of 1895, c. 157, § 2; R. S. c. 77, § 8. In to two certain described lots, and that it did not "refer to or in any way affect" a certain other lot, described in the deed as the "First Lot," that relying upon these state ments she signed the deed, as requested, that she did not know the true contents of the deed, that the defendant did know that the defendant induced the plaintiff to sign said deed in pursuance of a fraudulent scheme to deprive her of her interest and right by descent in the said "First Lot," and that the value of the plaintiff's interest in that lot was approximately $6,000.

The bill seeks to have so much of the fund received by the defendant from the sale of the real estate in question as is equivalent to the value of the plaintiff's right and interest therein, of which she claims to have been defrauded, declared to be a trust fund, and that the defendant be ordered to account to her for the same.

The defendant demurred, and the case comes before this court on report on bill and demurrer.

lieu thereof, a larger and more valuable in-
terest is given to the wife. The husband's
real estate descends, "if he leaves a widow
and issue, one-third to the widow. If no is-
sue, one-half to the widow. And if no kin-
dred, the whole to the widow." R. S. c. 77,
§ 1. This right of the wife is called in the
statute her "right and interest in the real es-
tate." Upon his death, the fee in the real
estate descends to the widow, in the propor-
tion prescribed by the statute. Longley v.
Longley, 92 Me. 395, 42 Atl. 798. During his
lifetime her right is, in a sense, inchoate, and
is contingent upon her surviving her husband.
But it is an interest. The statute terms it
such. It is a valuable interest. It is an in-
terest that she cannot be deprived of without
her consent, without compensation.
It is an
interest which can be valued. If she refuses
to release her interest by joinder in a deed
with her husband, her interest may be deter-
mined, and the value thereof ordered paid to
her. R. S. c. 77, § 17. It has been held that
she has such an interest during her hus-
band's lifetime that she is entitled to redeem
from his mortgage, though she had therein
released to the mortgagee her right and in-
terest by descent. Tuttle v. Davis, 114 Me.
109, 95 Atl. 513; Fitcher v. Griffiths, supra.

[1] There is an infirmity in the bill in that there is no express averment that the "First Lot" was included in the deed, but no point is made in argument on this ground. Nor is it contended that the allegations in the bill, which upon demurrer are to be taken to be true, do not state a case of fraud within the equity jurisdiction of the court, if the parties were not husband and wife. The defense, as stated in the brief, "rests upon the proposition that the doctrine of marital unity -oneness-has not been even in equity so completely abrogated as to authorize suits by one spouse against the other involving strictly marital rights in property." The sole question argued, and to be considered is, whether a wife has a remedy in equity | Mason, 140 Mass. 63, 3 N. E. 19. Much more against her husband for wrongs and frauds such as are alleged in the bill.

[2, 3] It is well settled that a wife cannot maintain an action at law against her husband. Perkins v. Blethen, 107 Me. 443, 78 Atl. 574, 31 L. R. A. (N. S.) 1148; Copp v. Copp, 103 Me. 51, 68 Atl. 458. It is equally well settled that, because there is no remedy at law, their conflicting rights touching property may be adjusted in equity. Fitcher v. Griffiths, 216 Mass. 174, 103 N. E. 471. This general proposition is not denied, but it is contended by the defendant that it is limited to property rights growing out of an antenuptial settlement, or relating to separate property, and does not include such rights as grow out of and depend upon the marital relation alone. And the inchoate interest which a wife has in her husband's real estate is claimed to be dependent only on the marital relation.

[4, 5] The discussion will be clarified if we state first what is a wife's interest in her husband's real estate. In this state the common-law right of dower has been abolished.

[6] It has been well said that an inchoate right of dower is a kind of property with incidents sui generis. Fitcher v. Griffiths, supra. It has been said that it is "a valuable interest, which is frequently the subject of contract and bargain. * It is more than a possibility, and well may be denominated a contingent interest." Bullard v. Briggs, 7 Pick. (24 Mass.) 533, 19 Am. Dec. 292. It has been called “a right of value, dependent on the incident of ownership." Mason v.

are these definitions to be applied to a right and interest by descent. Tuttle v. Davis, supra.

[7] It is an ancient doctrine that a bill for an injunction will lie to restrain a husband from transferring property in fraud of the legal or equitable rights of his wife. 2 Story's Eq. Jur. § 955. If this is true, it is difficult to perceive why a wife should not have an equitable remedy against the proceeds of his fraud.

[8] And this leads us to consider what we think is the precise issue in this case. This is not a bill to recover damages which have resulted from the fraudulent conduct of the husband. The plaintiff is not now seeking to protect her interest in the land. Her point is that her husband, by means of fraud, has received money for her interest in the land, and that in equity that money belongs to her. She seeks to impress upon that money a constructive trust, a trust ex maleficio. She is seeking to recover money which, she says, in equity belongs to her. She is seeking to enforce a property right. We think she may

(Supreme Judicial Court of Maine. Jan. 31, the lot. 1916.)

1. ENTRY, WRIT OF 20-PLEADING-DIS

Under Rev. St. c. 106, § 6, relating to pleading in a real action, pleading disclaimer as to Without evidence to the contrary, occupapart and the general issue as to part does not re- tion is presumed to be in accordance with the lieve the demandant from the necessity of prov-limits of ownership, but the presumption is reing title to the parts not disclaimed, as he can buttable. recover only on the strength of his own title, and not upon the weakness of the tenant, who may hold the demandant to the proof of his title, though he, himself, has none.