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the contributions were as stated by the The defendant insists that they arranged that
testimony of Mr. Vanneman, who beard Dan each should hold an equal half part; but this
iel Bittle make admissions in conversation, testimony does not effectively prove his claim.
which came in an entirely natural way, to The defendant Herbert I. Clement bought
the effect that Daniel had contributed but Daniel's share at the executor's sale with full
$550 and Benjamin had contributed $1,250 notice that Daniel's interest was in the pro-
of the purchase money. It thus appears that portion as $550 stands to $1,250, those being
their contribution to the purchase money on the sums contributed by Daniel and Benja.
this piece of land was in unequal proportions. min, respectively, for the purchase of the
There was no agreement between Daniel property. The defendant Clement is equi-
and Benjamin as to their several interests tably entitled only to that proportion which
iu the purchase, nor any arrangement where Daniel would have been entitled to bad he
by the one who contributed the most agreed been the defendant in this partition.
that the other should equally share with him The result is that a sale should be ordered,
in the purchase. In such cases, unless the and that the proceeds over and above the
parties stand to each other in the relation of payment of the mortgage and costs should
parent and child, or husband and wife, the be divided in the proportion that $550 stands
law raises a presumption called a "resulting to $1,250. That is, the defendant Clement
trust,” whereby each party holds a share in should have 11/30 parts and the complainant,
the property purchased according to his con Benjamin Bittle, 25/30 parts of the net pro-
tribution to the purchase money. The result ceeds of the sale.
of the transaction was that, when these There is a matter which appears in the
brothers thus purchased the land in ques orphans' court account of Benjamin as ex.
tion, Daniel had an interest in it as $550 ecutor of Daniel Bittle, as to the disposal
stood to $1,250, which latter amount Ben made of the rents of Daniel's lands since
jamin contributed to the purchase, and that his death, and before his executor made sale
sum represented Benjamin's share. There of them. Rents accruing after the death of
is no testimony showing that this arrange a decedent, and before the exercise of a
ment was in any way changed. No convey power of sale, go with the title to the land to
ance or declaration of trust, or of their sev the heir or devisee, and not to the executor,
eral interests, affecting the property, took or to the purchaser under the power. These
place between them.

rents appear to have been accounted for in
There is some proof which favors the de the executor's account. There are also cred-
fendants' contention that the brothers held its in that account which ought not to be
in equal shares the property purchased. The there. The matter is of small importance,
fact that the deed was made to both gener and has not been raised in argument, and
ally is some evidence of that, and so is the can probably be settled without further con-
charging of taxes, etc., by Benjamin against troversy in this case.
Daniel's estate in equal portions. But as to I will advise a decree as above indicated.
the effect of the deed, the proof is that these
brothers, though contributing to the purchase
in the proportions nained, and evidently in-
tending to own the property in those pro MONMOUTH COUNTY ELECTRIC CO. V.
portions, were very ignorant men, and it is CENTRAL R. CO. OF NEW JER-
hardly to be believed that they could or did

SEY et al. understand the legal effect of a deed to joint

(Court of Chancery of New Jersey. Feb. 13, grantees. So the charging of taxes, etc., in

1903.) Benjamin's account, is of some force to show

MORTGAGES--AFTER-ACQUIRED PROPERTYthat they held in equal shares; but this is

LIEN-PRIORITY. merely inferential proof, and ought not to 1. Where a corporation, after giving a mortbe held to overcome the uncontradicted show gage covering existing and after-acquired proping of the truth that the parties in fact

erty, which was duly recorded, placed poles

and wires belonging to it on the land of anpurchased and paid for the property in the other by agreement with him, the mortgage shares and proportions above mentioned, and was a lien prior to any claim of the landowner. that they have never since in any way ar

Suit by the Monmouth County Electric ranged a division of either the land or the

Company against the Central Railroad Com. profits thereof as equal owners each of one

pany of New Jersey and another.

Decree hall part.

for complainant. The payment of the proportionate shares of the purchase money by the several par

L. M. Garrison, for complainant. J. Le ties being established beyond dispute, a re

Conover, for defendants. sulting trust assiguing to each a quantity of interest in proportion to his payment arose, EMERY, V. C. At the hearing of the and should have effect, unless some definite cause my conclusion was announced, that the act of the parties is proven, which estab complainant, as purchaser at foreclosure sale lishes by equally forceful evidence some (or the grantee of such purchaser), was en. change in their relations to the property, titled to be subrogated to the rights of the whereby each was to hold a different share. mortgagee in the foreclosure suit, to the ex.

tent claimed; that is, the amount paid by by order of any court "shall be confirmed" the purchaser at the sheriff's sale ($250,000).

plainly refers to future sales. This seemed to me then to be the clear

3. Where a sheriff's sale is required to be

confirmed by the court, he cannot require the effect of the decisions from Parker v. Child,

purchaser to accept a deed until confirmation 25 N. J. Eq. 41, and Chilver v. Weston, 27

has been obtained. N. J. Eq. 439, to Boorum v. Tucker, 51 N.

Petition by Abraham V. D. Polhemus, sherJ. Eq. 135, 149, 26 Atl. 456; Pettingill v.

iff, for decree to compel John B. Priscilla to Hubbell, 53 N. J. Eq. 584, 32 Atl. 76. I do

accept deed and complete his purchase at a not change my views upon further consider

sheriff's sale. Denied without prejudice. ation. The question reserved was whether the mortgage was a lien, prior to any claim

Alan H. Strong, for petitioner. Willard P. of the defendants, upon poles and wires

Voorhees, for respondent. erected upon defendant's property subsequent to the execution of the mortgage, by an

EMERY, V. C. On this application I agreement between the mortgagor company

reach the following conclusions: and defendant. The mortgage covered all

1. The act of February 16, 1891 (P. L. p. existing and after-acquired property of the 24), directing confirmation of sales by the mortgagor company, and was duly recorded

court in cases like the present, was not rebefore the execution of the agreement be

pealed by the act of June 14, 1898 (P. L. p. tween the mortgagor company and the de

535), amending the previous acts of 1874 and fendant. Under the agreement, the poles 1887, relating to publication of notices of and wires were erected on defendant's lands,

sales of lands. The act of 1891 was not an and, as I construe its effect, they were the

amendment to the sales act, but was intendproperty of the mortgagor company, and they

ed to apply only to that class of cases in still remained its property at the time of

which, by previous statutes or practice of the the foreclosure. The mortgage expressly cov.

court, confirmation of the sale by a court was ered all after-acquired property, and under

necessary. The only statute requiring this our decision the mortgage is, in equity, a

was the statute relating to bonds and mortiien upon these poles and wires afterwards

gages and foreclosure sales of March 12, acquired, which is prior to mortgagee or

1880 (P. L. p. 255; Gen. St. p. 2111, § 4), and judgment creditors subsequent in date to the

perhaps sales in partition in chancery or ormortgage. Smithurst v. Edmunds, 14 N. J.

phans' court. The statute of 1891 did not at Eq. 408 (Ch. Green, 1862), approved McFar

all extend to or cover that large class of publand v. Stanton Mfg. Co., 53 N. J. Eq. 650,

lic sales upon which no confirmation by court 33 Atl. 962, 51 Am. St. Rep. 647 (Err. &

is necessary. This statute was, therefore, App.); Cumberland Nat'l Bk. V. Baker, 57

one of special application, and did not repeal N. J. Eq. 231, 40 Atl. 850 (V. Ch. Grey,

the previous provisions of the general acts of 1898). The defendants have no lien upon

1874 and 1887 as to sales of land. Neither this after-acquired property, either by the

was it repealed by the subsequent general act agreenient or otherwise, and have only the

of 1898, changing the publications required.

The statute of 1891 can be read in connecright to purchase it at a valuation, or to require its removal on the termination of the

tion with the act of 1898, and both made ef

fective. agreement, which has already expired.

Thus read together, the statutes There must be a decree in favor of the

still require the sheriff to make advertisement complainant, requiring defendants to redeem according to the law of 1898, but, if there is or be foreclosed.

a defective advertisement, then, if the sale is one which is subsequently to be confirmed by the court, the court may, under the con

ditions prescribed by the act of 1891, confirm POLHEMUS V. PRISCILLA.

the sale, notwithstanding the defect in ad

vertisement. The claim that the act of 1891 (Court of Chancery of New Jersey. Feb. 13,

was repealed by the act of 1898 is, for these 1903.)

reasons, not sustained. JUDICIAL SALES - CONFIRMATION IRREGU.

2. The act of 1891 is not a mere validating LARITIES-ACCEPTANCE OF DEEDSTATUTES-REPEAL.

act, applicable to past sales only. The lan1. Act Feb. 16, 1891 (P. L. p. 24), providing guage of the act plainly refers to future sales. that judicial sales of land should be confirmed "All sales made by virtue of any order, judg. potwithstanding irregularity in the publication

ment, or decree of any court of record of of the notice of sale, when the officer making the sale certifies under oath that the sale was

this state, shall be confirmed by the court," otherwise regular, and for a fair price, and etc. It is certainly prospective, whether or the court is satisfied that the interests of the not it be retrospective. The plain language parties were not injuriously affected by the irregularity, was not repealed by Act June 14,

covers sales that are to be thereafter con1898 (P. L. p. 535), amending the acts ap firmed, and without limiting the confirmation proved March 25, 1874, and March 17, 1887, to sales previously made. The act is not an relating to publication of notices of sales of

act to validate sales, but an act concerning land under judicial proceediugs, and changing the publications required.

defective advertisements. There is nothing 2. The act of 1891 (P. L. p. 24) was not a in the title or act to indicate that the advermere validating act, applicable to past sales only, but in providing that "all sales" made 3. See Judicial Sales, vol. 81, Cent. Dig. $59.

1

tisements concerning which the statute legis whether the receipt of dues by the defendant lates were past advertisements. I think, from the complainant took place under such therefore, that the present case is within the circumstances as to estop the defendant from act, and the petitioner is entitled to the ben denying membership under the forged cerefit of it.

tificate. The dues wbich were paid includ3. The only relief I can give the sheriff on ed the regular payments upon valid shares this petition is to have the sale confirmed un held by the complainant, as well as payder the act of 1891. The respondent was not dients upon the shares represented by the bound to accept a deed until a confirmation forged certificate. The treasurer of the comunder this act had been made, and a deed pany, to whom the payments were turned tendered after confirmation. The right of over by MacDermott, the secretary, who is the sheriff to proceed to specific performance sued the forged certificate, bad no knowlis based on the fact, and only on the fact, edge that the payments were made on these that he has fully complied with his duty as forged certificates, and credited the entire an officer executing a statutory power, and payments to the account of the valid shares, thereby is entitled to call on the purchaser to taking them to be payments in advance. complete the sale upon his part. It may be, Under the by-laws there was nothing to prehowever, that the parties have raised ор vent payments in advance, as the payments this application all the questions intended to (article 13, § 3) were to be made “on or be be raised, if a deed should be tendered after fore" certain days fixed. No payments were confirmation under the act of 1891; and, if ever credited to the account of any shares 60, I may, by consent of the purchaser, now represented by the forged certificates. Unorder the acceptance of the deed after con der these circumstances, no estoppel to deny firmation, with the same effect as if a tender the validity of the forged shares, or the right had been made after confirmation. If he to membership based on them, can arise. does not consent, the present application will Membership, in such case, could be rested be denied, except as to the confirmation of only on the ratification of the illegal issue the sale, but without prejudice to a renewal by receiving payments thereon, and the conseof the application on tender of the deed after quent estoppel against subsequently denying confirmation of sale.

niemibership as the effect of the payments
and receipt. But ratification of a previous
illegal or unauthorized act never arises, un-

less the act claimed to be a ratification is COLUMBIA COUNCIL, NO. 77, JR. 0. U. done with knowledge of the previous invaA. M., OF MATAWAN, N. J., V. BEL lidity or irregularity, or of the facts from

MAR BUILDING & LOAN ASS'X. which they result. The treasurer in this case (Court of Chancery of New Jersey. Feb. 13,

was the only officer entitled to receive the 1903.)

payments for the company; and even as

suming that he had authority, by their mere
BUILDING AND LOAN ASSOCIATIONS-FORGED
CERTIFICATES OF STOCK-RECEIPT OF PAY receipt, to ratify an illegal or void issue of
MENTS-ESTOPPEL TO DENY MEMBERSHIP.

certificates (which I do not intend to decide), 1. One who held a forged certificate of stock

the payments made on the fraudulent shares in a building association, and also valid certificates, made payments of dues on them all

were by him intended to be received and to the association's secretary, who had issued were received and credited as payments on the forged certificate, and who had no author

the valid shares, and without knowledge on ity to receive payments for the company. The secretary turned the money over to the treas

his part of the existence of the forged urer, who was ignorant of the existence of the shares. There was, therefore, no ratification forged certificate, and who, supposing the pay- | by the company, and no estoppel to deny the ments to be made on the valid certificates,

validity of the certificate can arise. The credited them thereon as advance payments, which, under the by-laws, were allowable. The payment by complainant on account of the treasurer was the only omcer entitled to re shares represented by the forged certificate ceive payments for the association. Held, that

was actually made to MacDermott, who was the association was not estopped to deny mem. bership by virtue of the forged certificate.

the secretary of the company. He undoubt

edly knew of the forgery, for he was the Bill by Columbia Council, No. 77, Jr. O.

person who issued the certificate to comU. A. M., of Matawan, against the Belmar plainant. But as secretary he had no auBuilding & Loan Association, to establish

thority to receive the payments for the commembership in the association. On bill, an

pany, and the payment to him by complainswer, replication, and proofs. Bill dismissed.

ant for the purpose of turning over to the J. C. Conover and A. E. Arrowsmith, for treasurer must be considered to have been complainant. Frank Durand, for defendant. made to him as the agent and for the con

venience of the complainant, and it was at EMERY, V. C. Complainant's counsel bave complainant's, and not defendant's, risk, that not submitted any briefs, and the cause will the payments were turned in by MacDermott, not be held any longer for them. The com and credited by the treasurer as payments plainant has no claim for membership in the made on the valid shares only. The com association based on the forged certificate it pany cannot be held in this case as estopself, and the only question in the cause is ped, by MacDermott's dealings with com

case.

plainant, from denying the validity of the details of the transactions so far as they shares.

have come to his knowledge, and asks a disThe bill of complainant seeking to estab closure of all the incidents whereby the title lish its membership by virtue of this forged of the trust property has been disposed of, certificate and its alleged payments thereon and an accounting for, and the payment back must be disrnissed. The dismissal, however, to the trustee of, the profits of the trust will be without prejudice to any action which property wrongfully retained, and also a rethe complainant may have at law for the conveyance of the portion of the trust lands, repayınent of the amounts paid on the forged which, it is alleged, have been wrongfully shares or otherwise.

obtained by the defendant Fithian for his personal use.

The bill of complaint is challenged under (64 N. J. E. 259)

the 213th rule, in three particulars: The first RILEY V. FITHIAN et al.

is as to the 12 or 13 pages in which the (Court of Chancery of New Jersey. Jan. 23,

trustee narrates the origin and the terms of 1903.)

his trust. The criticism made of this portion

of the bill is that it is wholly immaterial as EQUITY-PLEADING-BILL-TRUSTEE_TERMS OF TRUST-DILIGENCE-COSTS.

to whether the complainant is trustee or not; 1. In au action by a trustee to recover trust if he is, it is wholly immaterial what the property alleged to have been wrongfully ob terms of his trust are; that the gravamen of tained by the defendant parts of the bill nar his bill is the demand that the complainant rating the origin and terms of the trust and the parties thereto should not be stricken out

should have an accounting from his agent as immaterial.

employed to dispose of his property; and it is 2. An allegation in the bill in an action to re insisted that the origin and nature of the cover property of which complainant claims to have been defrauded that he consulted his

trust under which the complainant holds the counsel as to the transactions, and directed lands in question may be wholly left out his counsel to investigate the facts to enable without any detriment to the complainant's him to take legal steps for relief, should not

An examination of the bill of combe stricken out, as it tends to show diligence and explain delay, and is not prejudicial to the

plaint indicates that the narration of the deiendant.

origin of the trust under which the complain3. The insertion, in a bill by a trustee to re ant holds the trust property is necessary, in cover trust property, of a copy of a letter writ

order to show who are the cestuis que trustten by complainant's counsel to defendant before suit, stating counsel's views as to the legal

ent, who, in proceedings affecting the trust basis of complainant's claim, and suggesting property, should be made parties, unless the an "adjustment without recourse to the

securing of their appearance is greatly inconcourts," is proper, as being matter for consid

venient or practically impossible. The Court eration in the allowance of costs.

of Appeals settled this in the case of Tyson Action by Franklin Riley, trustee, against

V. Applegate, 40 N. J. Eq. 311. To strike out Francis R. Fithian and others. Motion to

the history of the origin of the trust would strike out parts of bill. Refused.

leave the complainant declaring that he was Clement H. Sinnickson and W. A. Logue, a trustee, without disclosing his trust, or for complainant. E. A. Armstrong and Da- showing who were entitled to the benefits of vid J. Pancoast, for defendants.

it. The narrative of the creation of the trust

is somewhat extended, but the transactions GREY, V. C. (orally). This matter may be out of which the trust grew were themselves presently disposed of, as the elaborate argu both complicated and voluminous. They can. ments of counsel on both sides have fully not be stricken from the record without cripdiscussed every view which may be taken pling the complainant's statement of his of the points in dispute. The bill of com cause of action. The above objection to the plaint is filed by a trustee, who devotes the bill must be overruled. first 12 or 13 pages of the bill to a definition The next criticism of the bill of complaint of the origin and character of his trust. is that it contains an allegation that there The principal defendant is Francis R. Fith was a consultation between the complainant ian, who is alleged on the face of the bill to and his counsel touching the transactions inhave been the agent of the complainant, volved, and a direction by complainant to whom he employed to sell the trust property. his counsel that they should make such inThe other defendants are parties claimed to quiry as to the facts as might be necessary bare been associated with Mr. Fithian in the to enable him to take legal steps for relief. doing of the acts alleged to be wrongful. The This is objected to as irrelevant. The obbill alleges that the trustee employed the de ligation upon a party who thinks he has reafendant Fithian to effect a sale, and charges son to believe he has been defrauded of propthat he and those he associated with him erty is to make diligent inquiry, and pursue have wrongfully retained part of the trust his remedy before the defendants, if they be property, and have sold and retained the in fact fraud doers, may so act as to change profits of another part; that these acts were the nature of the title or involve persons who concealed from the complainant (trustee), are innocent as to the fraud. If, upon the and have resulted in great loss to the trust face of the bill of complaint, it appears that estate. The trustee complainant states the the complainant has supinely slept after

warning of his danger, he might be liable to 3. Where a bankrupt was examined in the a charge of laches from a party who, because bankruptcy proceedings concerning an alleged of this negligence, might have become a bona

preference, his testimony given there was only

admissible as against an alleged preferred credfide purchaser of the property. The inser itor in an action in the state court to set aside tion of a clause tending to explain delay in such preference as affecting the bankrupt's procedure, or to show diligence, while not of

credibility as a witness in the state court.

4. Defendant loaned money to er brother, vital importance, is in no way prejudicial or

as a temporary loan, which was renewed for embarrassing to the defendants. It should several periods, of six months each, until 1896, not be stricken out of the bill.

during which the brother was solvent. InterThe third criticism of the bill of complaint

est was paid on the note until July, 1900, when is the insertion therein of a copy of a letter

defendant requested security, and the brother

informed her that he would give a deed of cerwritten by the counsel of the complainant to tain lots for the note, which defendant agreed the defendant Fithian at or about the ending

to accept. Nothing was said as to the brothof a correspondence between them regarding

er's finances, and he executed a deed of the

lots to her August 8, 1900, and had same rethe subject-matter of the present lawsuit. corded the next day. He filed a petition in The objection is that this letter is wholly ir bankruptcy August 17th, and was adjudicated relevant and immaterial as a part of the com

a baukrupt on September 17th, after which

defendant obtained the deed from the regisplainant's statement of his cause of action;

ter's office, having previously been informed that it is in the nature of a law brief, and thereof by her brother. Held, that the facts has no proper place in the bill of complaint.

were insufficient to show that at the time of The letter in question is a statement by

the conveyance she had knowledge or reason.

able cause to believe that her brother was incomplainant's counsel to the defendant Fith

solvent, or that he intended the deed as a ian of his view of the legal basis of complain-preference. ant's claim, and expresses a willingness to

5. The deed was delivered when the grantor

left it for record, and therefore the title to the confer for "adjustment without recourse to

property did not vest in the bankrupt's trusthe courts,” etc. It occupies about one page tee, under Bankr. Act, $ 70, subd. 5 (U. S. of the bill. In equity costs are not necessa Comp. St. 1901, p. 3451), vesting in such trusrily awarded to the successful party in the

tee property which prior to the filing of the

petition the bankrupt could have transferred, final decree. The showing on the face of a

or which could have been levied on by judicial bill of complaint that previous to its filing process. the defendant had been warned of his equitable duty, and requested to perform it, is

Bill by Jerome T. Congleton, as trustee,

against Jacob Schreihofer and another, to set pertinent allegation. The complainant, if successful in the cause, may appeal to the

aside a conveyance as an alleged preference fact that the defendant contested the suit

by a bankrupt. Bill dismissed. with previous warning of the legal basis of W. T. Day and J. E. Howell, for comthe complainant's claim, as a justification for plainant. E. S. Black, for defendants. the allowance of costs.

None of the specified criticisms of the bill EMERY, V. C. Complainant, a trustee in of complaint can be sustained. The motion

bankruptcy of Jacob Schreihofer duly adjudito strike out is therefore refused, with costs. cated a bankrupt by the United States Dis

trict Court, files this bill to set aside a conveyance made by the bankrupt to defendant

Elizabeth Steigert. The deed was dated and CONGLETON v. SCHREIHOFER et al. acknowledged August 8, 1900, and recorded (Court of Chancery of New Jersey. Feb. 3,

August 9, 1900. The petition in bankruptcy

was filed August 17, 1900, and the date of 1903.)

adjudication of bankruptcy was September BANKRUPTCY STATUTES - CONSTRUCTION

17, 1900. Under the United States bankrupt CONVEYANCES - DELIVERY PREFERENCES - GRANTEE - KNOWLEDGE OF BANKRUPT'S

act of 1898, $ 70 (U. S. Comp. St. 1901, p. INSOLVENCY.

3451), the trustee is, inter alia, "vested by 1. Bankr. Act, $ 67, par. "e" (U. S. Comp. operation of law with the title of the bankSt. 1901, p. 3149), provides that conveyances rupt, as of the date he was adjudged a bankby a bankrupt within four months prior to filing the petition in bankruptcy, with intent and

rupt, to all

(4) property transferpurpose ou his part to hinder, delay, or defraud red by him in fraud of his creditors; (5) his creditors, shall be void as against such property which prior to the filing of the creditors, except as to purchasers in good faith petition he could by any means have transand for a present consideration. Held, that such act referred only to transactions which

ferred, or which might have been levied upon were previously void under the statute of and sold under judicial process against him. frauds, and hence a conveyance by a bankrupt

Section 60, par. "b" [U. S. Comp. St. to a bona fide creditor for a precedent debt, by

1901, p. 3145), also provides "that if a bankway of preference, was not invalid thereunder. 2. Where a preferred creditor of a bankrunt

rupt shall have given a preference within had been previously examined in the bank four months before the filing of the petition, ruptcy proceedings in regard to the convey.

or after the filing of the petition and before ance, such creditor's evidence was admissible against her in a subsequent action to set aside

the adjudication, and the person receiving it, the conveyance in a state court.

or to be benefited thereby, or his agent act

ing thereon, shall have had reasonable cause s 1. See Bankruptcy, vol. 6, Cent. Dig. $ 259.

to believe that it was intended thereby to

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