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tained the Provident Life & Trust Company, ed, it would have been a good tender notmortgage to be canceled, satisfied, or dischar. withstanding the condition. The doctrine es ged, and that this had not been done; that pounded by the cases which Mr. Crandall has the defendants bad, at the end of the five cited is good law, in my judgment. But in years, tendered the mortgage money, and de order to make a conditional tender effective, manded the performance of the alleged agree it must have been the duty of the party to ment to discharge. This testimony was ob whom the tender was made to have performjected to because contradicting the terms of ed the condition which was required of him the contract to purchase and pay for the as precedent to the accordance of the tender. mortgaged premises, as that agreement is evi In this case there was no duty upon the comdenced by the deed and the bond and mort plainant to cancel the preceding mortgage, gage, which latter declares that the defend subject to which the defendant mortgagors ant obligor should pay the mortgage money had taken title; and therefore when the "within five years from the date thereof, tender was made to him, that the mortgagor with lawful interest thereon," and contained would pay off this mortgage, upon condition no additional term providing that the pay that the mortgagee should obtain the Provi. ment shall be conditioned upon the preceding dent Trust mortgage to be released or candischarge by the mortgagee of the Provident celed, it was an unlawful condition, one Life & Trust Company mortgage. The rule which the complainant was not called upon is entirely settled that, in the absence of to perform, and he might rightfully and justfraud or mistake, parol contemporaneous tes ly refuse to accept the money on those terms. timony cannot be received to vary or contra- Nothing in either the answer or the offer of dict the terms of a written contract. Naum proof proffers any defense of fraud in obtainberg v. Young, 44 N. J. Law, 331, 43 Am. ing the agreement in question, or mistake in Rep. 380; Van Horn v. Van Horn, 49 N. J. its drafting or execution. If such fraud or Eq. 328, 23 Atl. 1079 (court of appeals). The mistake was to be set up as a defense, it defendants insist that this parol proof does should have been alleged in the answer. not contradict or vary the terms of the writ There is no such allegation. ten bargain between the parties, but that it The testimony of the complainant stands is merely explanatory of and consistent with undisputed. There must be a decree for the it. The clause above quoted in the deed. principal sum due on his mortgage, with inshows that the defendants took the title sub terest from its date, according to the prayer ject to the charge of the Provident Life & of the complainant's bill. I will sign such a Trust Company's mortgage, at least to the decree. amount of $1,000. No dispute or question has been raised here as to any variance in the

(64 N. J. E. 504) amount of the Provident Life & Trust Company mortgage. The deed stated that it is CONDIT et al. v. BIGALOW et al. made subject to a mortgage of $1,000 to the (Court of Chancery of New Jersey. Feb. 3, Provident Company, while $28,000 is stated

1903.) in the answer to be the amount. That mort

CONVERSION - TESTAMENTARY POWER OF gage has been dealt with, so far as proof of SALE - RECONVERSION - PARTITION

OF

WIFE'S LAND-CONVEYANCE TO HUSBAND its amount is concerned, as undisputed by

-RESULTING TRUST-NOTICE TO PURCHASeither party, and the point to which all ques

ER-PAYMENT OF PURCHASE MONEY-RE

CITAL IN DEED-ESTOPPEL BY WARRANTY tions and arguments have been directed has

-RES JUDICATA-BILL TO ESTABLISH REbeen to ascertain whether or not the com SULTING TRUST-LIMITATIONS. plainant mortgagee was obliged to cancel or 1. Testator devised the residue of his realty satisfy that mortgage, no matter what its to four devisees in equal shares, naming three

of them as executors, and directing them to sell amount. When the written contracts (the

"all or any part” of such realty, and divide deed and the mortgage) were made, the com the proceeds among the devisees. No sale was plainant imposed his terms of payment, and had," but a partition was effected by an exinformed the defendants that they took bis

change of conveyances; the deed to the share

of one devisee being made by the executors to title subject to the preceding Provident Life her husband. Held, that the husband did not & Trust Company mortgage. Testimony that take an absolute title, on the theory of equithey took their title clear of that mortgage,

table conversion and reduction of the property or under a parol agreement that it should

to possession as personalty, as the discretion

ary character of the power of sale given thy be discharged by the complainant, is in direct executors precluded equitable conversion. contradiction of the terms of the deed and 2. Even had there been an equitable convermortgage. Such proof is in no way explan.

sion, the partition amounted to a reconversion.

3. The conveyances made by the husbanj atory of the terms of the deed or mortgage;

and wife, forming the consideration of that by on the contrary, it is in refutation of those the executors to the husband, and absoluto terms, and must, therefore, be excluded. The title in the husband being inconsistent with proof of the manner of the tender, very

the legal obligations of the parties, and re

citals in a prior partition conveyance and in a frankly and truthfully given, shows that the chancery suit between the parties declaring tender was made each time upon condition that the husband took in right of his wife, a that the complainant should procure the pre

trust in the husband resulted to the wife and

her heirs, subject to his tenancy by the curtesy. coding mortgage to be canceled. If that condition inight rightfully have been attach I 2 See Conversion, vol. u, Cent. Dig. $$ 67, 69.

4. A purchaser from a busband of land con EMERY, V. C. The object of this bill is veyed to the husband by the executors of his

to establish a resulting trust in lands which father-in-law in consideration of $1 and conveyances by the wife, the husband joining

were conveyed in fee to William C. H. Wadthe whole transaction constituting an exchange

dell, under whom defendants claim title. The of conveyances to effect a partition of a devise complainants claim under the wife of Wadto the executors and wife as tenants in com

deli, and allege that the conveyance to Wadmon-is put on inquiry, by the recited cousideration and notice that the husband's actual

dell was made for the purpose of a partition interest as tenant by the curtesy was derived or division between the devisees of one Lem. from the father-in-law, as to a trust resulting uel Cobb, the father of Mrs. Waddell, of to the wife in the land conveyed to him.

some of the lands devised by him to Mrs. 5. A partition of lands between tenants in common under a will was effected by an ex

Waddell and others, and that the husband, change of conveyances, the deed to one ten on taking the conveyance of these lands in ant's share being made to her husband. A his name, must be held to have taken the prior chancery suit had been instituted by the husband and wife against the other tenants,

conveyance as trustee for his wife. The who were also executors; the bill praying for legal title of the husband at the time of the a recovery of the wife's interest in the devise. conveyance was that of tenant by the curA receiver was appointed to lease, collect the tesy initiate in the undivided interest (onerents, and divide the property, and the partition conveyance to the husband was acknowl

third) of the lands to which his wife was edged before the receiver. The suit was still entitled. If the transaction in which the pending, by revivor in behalf of the wife's in- conveyance to the husband was made was fant heirs at the time of a sale by the hus

in fact a partition or division by deed beband. Held to be notice to the purchaser that the husband's interest arose under the will,

tween the tenants in common of the fee, it that he had received the land in right of his is claimed that the deed should have been wife, and that her heirs had succeeded to her made to the wife, and that, if made to the interest; and this notwithstandino a 10-year husband, he will (for the interest therein delay by the husband in prosecuting the suit. 6. A recital in a deed executed by a trustee,

beyond bis life estate) hold the legal estate in derogation of his trust, of the payment of conveyed by the deed as trustee for the wife. the purchase money, is not sufficient evidence That a trust results in favor of the wife is of payment in behalf of the grantees' heirs, as against the cestui que trust.

the settled rule, where the wife's money or 7. In effecting partition of lands held in com

separate estate pays for land to which the mon, one tenant conveyed by warranty deed husband takes title. Lathrop v. Gilbert (Wilto the husband of the other, and afterwards

liamson, Ch; 1855) 10 N. J. Eq. 344; City purchased the interest of the wife's heirs. In an action at law by such tenant against the

Nat'l Bank v. Hamilton (Van Fleet, V. C.; husband's grantee, estoppel by the tenant's 1881) 34 N. J. Eq. 158; Irick v. Clement (Err. warranty was pleaded, and decided adversely & App. 1892) 49 N. J. Eq. 590, 27 Atl. 434. to defendant; judgment being given the ten

And the same rule applies on a partition or ant for a one-third interest, and he being remitted to equity for further relief. Held, in the

division of lands, where the wife, as one of equitable suit thereupon instituted, that the the tenants in common, is entitled to the judgment was res judicata on the issue of

conveyance, and her husband es title to estoppel.

her sbare. Weeks v. Haas (Gibson, C. J.; 8. A grantor by warranty deed of lands impressed in the grantee's hands with a resulting

1842); 3 Watts & S. 520, 39 Am. Dec. 39; trust is not estopped by his warranty from ac

Freeman on Partition, sec. 406. On this quiring the interest of the cestui que trust. branch of the case the defendants raise the 9. On December 27, 1838, a deed was made

question whether the transaction is to be to a husband of realty impressed in his hands with a resulting trust in favor of his wife.

treated as a partition among the devisees, The wife died in 1841. On May 4, 1818. the and claim that, by reason of the directions husband conveyed. The wife's infant heirs of the will, it is not to be treated as a parcame of age and conveyed their interests by deeds executed between February, 1855, and

tition. The lands were part of the residue September, 1862. The husband died May 29, of Lemuel Cobb's estate, as to which his will 1881. In Norember, 1892, parties claiming un was as follows: “Third. I divide all the der the wife's heirs brought ejectment against

residue of my real and personal estate into parties claiming under the husband's grantee, setting up an entire legal title to all the realty.

four equal parts or shares, one share thereThey recovered a one-third interest, it being ad of I give and bequeath to Benjamin Howell, judged that as to the balance they had no title of Troy, the husband of my daughter Elizaat law. On January 18, 1895, suit was begun by them in equity. Held, that the latter suit

beth, one other share I give and bequeath to was not barred; the statute of limitations not

Walter Kirkpatrick, nevertheless in trust for beginning to run against the wife's heirs till Eugene Kirkpatrick, the only son of my the accrual to them of a right of entry on the daughter Maria C. Kirkpatrick, one other husband's death, and the action at law being to enforce the same rights as the suit in equity.

share I give and bequeath to my daughter

Julia Ann [Mrs. Waddell] and the remaining Bill by Melville S. Condit and others, as

share I giv and bequeath to my son Anexecutors of Andrew B. Cobb, deceased, drew B. Cobbto have and to hold to each against George Bigalow and others. On bill, of them their heirs and assigns forever. I answer, replication, and proofs. Decree for do hereby nominate, constitute and appoint plaintiffs.

my son Andrew B. Cobb, Walter Kirkpatrick

and Benjamin Howell executors to this my Mablon Pitney, for complainants. John W. Testament and last will. I do hereby order Jarding, for defendants.

and direct my executors hereinabove named 14 A.-11

or a majority or the survivor or survivors, deprive the devisees of the legal estate of of them, to grant, bargain and sell all or the right to retain the land, as land, because any part of the residue of my estate called the proceeds of sale, if any sale be made, the third item & divide the moneys arising are by the will to go to the devisees of the therefrom among the legatees therein men land. It is the more rational conclusion, tioned.” It is claimed that this direction therefore, that the testator by vesting an imamounted to an equitable conversion of the mediate fee siinple in all his lands in his residuary real estate, and that the partition devisees, by virtue of which they were enof the lands in question (which was the titled to immediate possession and enjoyment third partition between the devisees) should of the lands upon his death, intended them be considered in equity as a division of the to have the lands, subject only to a power proceeds oi sale, and that, the husband be of sale of any of the lands, if the executors ing at the time of the partition (1838) ab (being three of the four devisees) thought solutely entitled to the wife's personal es. best for the estate to sell; and, if such sale tate, he should be considered as holding the were made, the devisees, and no other perlands as proceeds of sale and as the pro sons, should receive the proceeds. This conceeds of his own money.

struction of the power to sell as a discreThe doctrine of equitable conversion is a tionary and not as an imperative power branch of the general equitable doctrine of makes the will, and every word of it, opertrusts, and bas been adopted solely for the ative, and harmonizes with its general plan. purpose of executing trusts, and it is es Another reason why the doctrine of consential to the application of the doctrine of structive conversion cannot be held effective conversion that the property should be sub- | in this case to convert the land into money ject to a trust or imperative direction for is that by the partition an equitable reconconversion. Where, as in this case, there version, as it is called, took place. "By such is no devise of the legal estate to the execu. reconversion the prior constructive convertors, and their control over the legal estate, sion is annulled, and the converted property which is rested in others, is solely that of is restored in equity to its original actual a power of sale, the question is whether it quality.” 3 Pom. Eq. sec. 1175, etc. Mrs. is a mere naked power of sale, the exercise Waddell and the legatees of the proceeds of of which must be discretionary, or whether sale joined in the series of releases and con. it is a power in trust, the exercise of which veyances which released from the power of is imperative. The execution of powers in sale the shares of the lands devised to the trust may be required in equity for the trustees and to Mrs. Waddell. There is no benefit of the beneficiaries entitled, but, when question that her deed in which her husband the trustee of the power is clothed with a joined had this effect, and that thereafter discretion as to its execution, the court will the lands conveyed to the trustees were freed not control the discretion. Brown v. Higgs, from the operation of the power or trust. 8 Ves. 561, 569 (1803); 2 Pom. Eq. sec. 1002, In consideration of the release to each of the and cases cited; 2 Story, Eq. Jur. sec. 1601. other devisees, Mrs. Waddell was entitled to And in order to give rise to an equitable or a release to herself of the remaining lands, constructive conversion, the direction to con and it must be presumed that the conveyvert must be imperative, and the conversion ance to the husband was intended to be for must not be left to the option of the donee her benefit. The transaction cannot be conor trustee. Cook's Ex'r v. Cook's Adm'r sidered as in any sense a sale to Waddell (Zabriskie, Ch.; 1869) 20 N. J. Eq. 375, 379. by the executors as trustees, for, treated as a In this will there is first an absolute devise sale, it would have been a breach of duty in in fee of the legal estate to the devisees, all three concerned to have given Waddell then an appointment of executors, with a the absolute interest in the share of lands to direction to sell following this appointment. which his wife was entitled in consideration The direction is not a direction to sell all of her conveyance to the executors themhis residuary estate, but all or any; and selves, as individuals, of the wife's interest these words, “or any,” necessarily imply, as in the other lands, which it was also their it seems to me, the power or option of sell- duty to sell for the common benefit of the ing or not selling some of the land, in their devisees. The only view of the transaction discretion. If the power be construed to be consistent with an honest intention of the imperative, it can only be upon the theory parties to protect the rights of Mrs. Waddell that all of the real estate must be sold by is that a partition between all the parties the executors. If as to any of the real es interested was intended, and that by ignortate the sale need not be made, then, plainly, ance or oversight the deed for Mrs. Wad. an option as to conversion exists. Such op- dell's share was made to her husband without tion might be controlled by the court, in declaring her right. In one of the former proper cases, for the benefit of the bene partitions the deed to Waddell did declare ficiaries; but, where an option or discretion that the conveyance was made to him in to be exercised exists, the doctrine of con right of his wife, and in the chancery suit, structive conversion is not applicable. Di hereinafter referred to, the final decree made rections of most positive and imperative | the same declaration as to the lands included character would be required in this case to in the partition now in question.

The contention of complainant that the lands embraced in the residuary clause, and deed to Waddell from the other devisees for to divide the lands and personal estate among the interest in the lands to which his wife the persons in interest according to their was entitled on a partition is to be treated rights under the will of Lemuel Cobb. The in equity as a payment to the husband of receiver was directed to report his proceedmoney to which he was entitled as his own, ings under the order to the court. The deed under this will, depends, it will be observed, to Waddell made in December, 1838, and now upon the establishment (1) of an equitable in question, was executed and acknowledged constructive conversion of the lands into before Walter Kirkpatrick, the receiver, who money by the will; (2) a constructive sale by died subsequently, and before the conveythe executors; and (3) a constructive reduc ance to Bigalow. Mrs. Waddell died in 1841, tion to possession of the purchase money by and in February, 1848, the suit was revived the husband-all accomplished by a transac in the name of her infant heirs as co-comtion which on the face of it was plainly in. plainants. This revivor was prior to Biga. tended to be a simple partition of lands, re low's purchase (May 4, 1848), and the suit moving them from the operation of the pow was, in my judgment, notice to Bigalow at er of sale. The doctrine of equitable con the time of his purchase that his grantor's version, as between busband and wife, in interest in the lands in question arose under relation to the proceeds of sale of her lands, the will of Lemuel Cobb, that he had received is never held to be applicable unless a valid the same on a division and in the right of sale has in fact taken place. Frank v. Bol his wife, and that the heirs of Mrs. Waddell lans (1868) L. R. 3 Ch. App. 717. It does had succeeded to the interest of their mothnot, in my judgment, extend to a case like er in the lands purchased from Waddell. this. So far, therefore, as Waddell, the hus Mrs. Waddell died in 1841-within three band, is concerned, and those claiming under years after the third partition of the lands him, with notice, the land conveyed must be made while the suit for accounting and diviimpressed with a resulting trust in favor of sion was pending. The suit was under the the wife and those claiming under her. control of her husband, and as her children

As to notice, I conclude, upon the whole and heirs at law were infants, whose interevidence in the case, that John W. Bigalow, ests could not be impaired by a mere delay to whom Waddell conveyed the premises in in the prosecution, I think the delay of the fee in 1848, after the death of his wife, had husband in the prosecution of the suit from notice that the conveyance to his grantor 1838 to 1848 did not operate to deprive the was made upon a partition or division in suit of its effect as notice to persons claiming which his grantor's wife furnished the con under the husband and adversely to the in. sideration–the substantial facts which raise fant heirs of the wife. Taking the entire the trust. This notice he received by his circumstances of the case as disclosed by the own deed, and the inquiries to which it nec paper title of Waddell and the chancery suit essarily led. The conveyances to the other at the time of the conveyance, there can be devisees and tenants in common were refer no reasonable doubt, I think, that Bigalow red to as the real consideration for the con was put upon inquiry as to whether the title veyance to Waddell; the other consideration of Waddell under this partition was not held -$1-being nominal. This statement of the in trust for his wife. It should also be noted consideration of itself suggested a partition that Bigalow's actual payment of the puror division so strongly as to put a purchaser chase money has not been proved. The buron inquiry, and Bigalow was chargeable, den of proving such payment is on the puralso, with notice that the actual title which chaser, and the recital of the payment in the Waddell held, and as to wbich his convey. deed is not, as against the cestui que trust, ance was altogether valid (that of a tenant sufficient evidence of the payment. 1 Perry by the curtesy in the lands), was derived on Trusts, sec. 219. Defendants are volun. from Lemuel Cobb. Mrs. Waddell had died teers claiming under Bigalow, as his heirs in 1847, and the deed to Bigalow was made at law, and they stand, therefore, in his posiin 1848. Notice to Bigalow was also given tion, as to the claim of bona fide purchase. by chancery suit pending at the time of the A third question—that of alleged estoppel purchase, brought in 1833 by Waddell and -arises under the following circumstances: his wife against the executors to assert their Andrew B. Cobb, one of the executors and rights in the lands devised by Lemuel Cobb; devisees under the will of Lemuel Cobb, and the bill praying, among other things, that one of the tenants in common, joined in the they might be let into possession of a fair execution of the deed to Waddell; and in and just share of the testator's real estate this deed, which on its face granted an ab80 devised to them by the residuary clause solute fee in the land, Andrew B. Cobb, of the will, or that the executors or a master covenanted, along with the other grantors, might be decreed to make a sale, and thať to warrant and defend the lands against a receiver be appointed. Walter Kirkpatrick himself and all persons claiming under him. was appointed receiver of the lands at the Andrew B. Cobb subsequently, and between October term, 1835, by an order in the cause February 6, 1855, and September 18, 1862, which directed the receiver (among other purchased the title and interest of the chil. things) to lease and collect the rents for the dren of Mrs. Waddell in the lands. He died

in January, 1873, and the complainants, as lands or estate to be conveyed, and of prehis executors and devisees, are by this bill venting the grantor's derogating from or de prosecuting his rights acquired by the deed stroying his own grant by any subsequent of Mrs. Waddell's heirs subsequent to his act. 2 Sm. Lead. Cas. (8th Ed.) 855 et seq.; own deed of warranty. The question is Van Rensselaer v. Kearney, 11 How. 297, whether the subsequently acquired title of 13 L. Ed. 703; Staffordville Gravel Co. y. the grantor inures to the benefit of the gran Newell (Err. & App. 1890) 53 N. J. Law, tee by reason of the warranty, and by way 412, 19 Atl. 209; Hannon V. Christopher of estoppel against the grantor. In my judg- (Van Fleet, V. C. 1881) 34 N. J. Eq. 459. The ment, the doctrine of estoppel does not apply enforcement of the trust upon which the to this case, and for two reasons: First. In legal estate was conveyed to the grantee in an action at law brought by complainants this instance executes the entire purpose of against defendants to recover possession of the conveyance. The grantor, therefore, the lands, in which action an undivided one should no more be restricted by the doctrine third interest was recovered, the same ques of estoppel from fairly purchasing the cestuis tion as to estoppel under the deed was rais que trustent's rights against the grantee ed, and was decided adversely to the de which arose from the conveyance, and enfendants, in reference to the one-third inter forcing their rights, than he should be estopest. This decision settles, as between the ped by the warranty from directly aiding parties, the law of this case in reference the beneficiaries against the trustee to have to the alleged estoppel, in a court of law; the trust declared, if the trustee repudiates and upon a purely legal question, such as the trust upon which the lands are conveyed. estoppel, this court would follow the deci That the legal title to the lands should be sion at law, made in a suit between the same held by the husband in trust for the wife parties, upon the effect of the deed as an is the aspect in which a court of equity looks estoppel. And even were not the question at the transaction as a whole, between all thus res adjudicata, the opinion of Mr. Jus the parties-grantor, grantee, and beneficiary. tice Magie—that under this deed there was The enforcement of the trust in favor of the no estoppel at law-should be followed, as beneficiary, against the grantee and those an authoritative exposition of the law upon holding legal title under him, with notice of the subject, under our decisions. Second. the trust, is the controlling equitable aspect The title now prosecuted is one claimed or of the case; and the covenants of the granderived originally under and from the gran tor as to title and warranty cannot be made tee of the deed. The cestuis que trustent to operate, by estoppel or otherwise, to conclaim under the grantee as their trustee in vey to the trustee any portion of the equitàequity, and an equitable title so derived ble interest or estates for which the legal from a resulting trust imposed on the gran title was, by the very circumstances and pretee by the circumstances of the conveyance sumed intention of the conveyance, held in is a title derived from the grantee, as clearly trust. as if the grantee had, upon the conveyance The remaining defense raised is that of to him, executed a declaration of trust or a laches in bringing the suit. It is claimed conveyance to the beneficiaries. As to a title that the statute of limitations is a bar to the derived from the grantee himself, the doc suit, and that, even if this statute be not aptrine of estoppel is, even at law, held not plicable, the delay is a bar. The deed to to be applicable. 11 A. & E. Ency. Law (2d Waddell was made on December 27, 1838, Ed.) 412. This is not a question of applying and Mrs. Waddell died in 1841. Upon her in equity (and as following the law) the death, Waddell became tenant by the curtelegal doctrine of estoppel by warranty, for sy, and on May 4, 1848, conveyed the lands the purpose of increasing the grantee's es in question to John W. Bigalow. Mrs. Wadtate conveyed by the deed, but the funda dell's infant children and heirs at law came mental question here is whether the convey of age subsequently, and conveyances of their ance of the legal estate was a conveyance interests in the land were made to their in trust. If so, the controlling feature of uncle Andrew B. Cobb by several deeds exethe case is the enforcement of the equitable | cuted between February, 1855, and Septemtrust, and the general rule is that, as against ber, 1862. Andrew B, Cobb died in January, all except bona fide purchasers, the trust 1873, and Waddell, the tenant by the curtesy, will be enforced; and, inasmuch as the died May 29, 1884. The statutes of limitarights of the cestuis que trustent are assign- tions do not, expressly or in terms, affect able, the trust will be enforced in favor equitable suits; but courts of equity, in enof the assignees. The precise question, forcing equitable rights or remedies, give therefore, is whether the subsequent assign- | effect to the statute. The extent to which ment by the cestuis que trustent of their effect is given to the statute depends someequitable rights to the grantor operates in what on the nature of the equitable jurisdicfavor of the trustee grantee, because of the tion invoked. Where the suit is based on a grantor's warranty. Estoppel by warranty legal right, and the appeal is to the auxil. is based on the fundamental principles of iary jurisdiction of this court, and equitable giving effect to the manifest intention of the aid is sought for the purpose of removing grantor, appearing on the deed, as to the the obstructions to complainant's legal right,

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