tained the Provident Life & Trust Company mortgage to be canceled, satisfied, or discharged, and that this had not been done; that the defendants had, at the end of the five years, tendered the mortgage money, and demanded the performance of the alleged agreement to discharge. This testimony was objected to because contradicting the terms of the contract to purchase and pay for the mortgaged premises, as that agreement is evidenced by the deed and the bond and mortgage, which latter declares that the defendant obligor should pay the mortgage money "within five years from the date thereof, with lawful interest thereon," and contained no additional term providing that the payment shall be conditioned upon the preceding discharge by the mortgagee of the Provident Life & Trust Company mortgage. The rule

is entirely settled that, in the absence of fraud or mistake, parol contemporaneous testimony cannot be received to vary or contradict the terms of a written contract. Naumberg v. Young, 44 N. J. Law, 331, 43 Am. Rep. 380; Van Horn v. Van Horn, 49 N. J. Eq. 328, 23 Atl. 1079 (court of appeals). The defendants insist that this parol proof does not contradict or vary the terms of the written bargain between the parties, but that it is merely explanatory of and consistent with it. The clause above quoted in the deed shows that the defendants took the title subject to the charge of the Provident Life & Trust Company's mortgage, at least to the amount of $1,000. No dispute or question has been raised here as to any variance in the amount of the Provident Life & Trust Company mortgage. The deed stated that it is made subject to a mortgage of $1,000 to the Provident Company, while $28,000 is stated in the answer to be the amount. That mortgage has been dealt with, so far as proof of its amount is concerned, as undisputed by either party, and the point to which all questions and arguments have been directed has been to ascertain whether or not the complainant mortgagee was obliged to cancel or satisfy that mortgage, no matter what its amount. When the written contracts (the deed and the mortgage) were made, the complainant imposed his terms of payment, and informed the defendants that they took his title subject to the preceding Provident Life & Trust Company mortgage. Testimony that they took their title clear of that mortgage, or under a parol agreement that it should be discharged by the complainant, is in direct contradiction of the terms of the deed and mortgage. Such proof is in no way explanatory of the terms of the deed or mortgage; on the contrary, it is in refutation of those terms, and must, therefore, be excluded. The proof of the manner of the tender, very frankly and truthfully given, shows that the tender was made each time upon condition that the complainant should procure the preceding mortgage to be canceled. If that condition might rightfully have been attach

ed, it would have been a good tender notwithstanding the condition. The doctrine expounded by the cases which Mr. Crandall has cited is good law, in my judgment. But in order to make a conditional tender effective, it must have been the duty of the party to whom the tender was made to have performed the condition which was required of him as precedent to the accordance of the tender. In this case there was no duty upon the complainant to cancel the preceding mortgage, subject to which the defendant mortgagors had taken title; and therefore when the tender was made to him, that the mortgagor would pay off this mortgage, upon condition that the mortgagee should obtain the Provident Trust mortgage to be released or canceled, it was an unlawful condition, one which the complainant was not called upon to perform, and he might rightfully and justly refuse to accept the money on those terms. Nothing in either the answer or the offer of proof proffers any defense of fraud in obtaining the agreement in question, or mistake in its drafting or execution. If such fraud or mistake was to be set up as a defense, it should have been alleged in the answer. There is no such allegation.

The testimony of the complainant stands undisputed. There must be a decree for the principal sum due on his mortgage, with interest from its date, according to the prayer of the complainant's bill. I will sign such a decree.

(64 N. J. E. 504)

CONDIT et al. v. BIGALOW et al. (Court of Chancery of New Jersey. Feb. 3, 1903.)

CONVERSION - TESTAMENTARY POWER OF SALE RECONVERSION PARTITION OF WIFE'S LAND-CONVEYANCE TO HUSBAND -RESULTING TRUST-NOTICE TO PURCHASER-PAYMENT OF PURCHASE MONEY-RECITAL IN DEED-ESTOPPEL BY WARRANTY -RES JUDICATA-BILL TO ESTABLISH RESULTING TRUST-LIMITATIONS.

1. Testator devised the residue of his realty to four devisees in equal shares, naming three of them as executors, and directing them to sell "all or any part" of such realty, and divide the proceeds among the devisees. No sale was had, but a partition was effected by an exchange of conveyances; the deed to the share of one devisee being made by the executors to her husband. Held, that the husband did not take an absolute title, on the theory of equitable conversion and reduction of the property to possession as personalty, as the discretionary character of the power of sale given the executors precluded equitable conversion.

2. Even had there been an equitable conversion, the partition amounted to a reconversion. 3. The conveyances made by the husband and wife, forming the consideration of that by the executors to the husband, and absolute title in the husband being inconsistent with the legal obligations of the parties, and recitals in a prior partition conveyance and in a chancery suit between the parties declaring that the husband took in right of his wife, a trust in the husband resulted to the wife and her heirs, subject to his tenancy by the curtesy.

2. See Conversion, vol. 11, Cent. Dig. §§ 67, 69.

4. A purchaser from a husband of land conveyed to the husband by the executors of his father-in-law in consideration of $1 and conveyances by the wife, the husband joiningthe whole transaction constituting an exchange of conveyances to effect a partition of a devise to the executors and wife as tenants in common-is put on inquiry, by the recited consideration and notice that the husband's actual interest as tenant by the curtesy was derived from the father-in-law, as to a trust resulting to the wife in the land conveyed to him.

5. A partition of lands between tenants in common under a will was effected by an exchange of conveyances, the deed to one tenant's share being made to her husband. A prior chancery suit had been instituted by the husband and wife against the other tenants. who were also executors; the bill praying for a recovery of the wife's interest in the devise. A receiver was appointed to lease, collect the rents, and divide the property, and the partition conveyance to the husband was acknowledged before the receiver. The suit was still pending by revivor in behalf of the wife's infant heirs at the time of a sale by the husband. Held to be notice to the purchaser that the husband's interest arose under the will, that he had received the land in right of his wife, and that her heirs had succeeded to her interest; and this notwithstanding a 10-year delay by the husband in prosecuting the suit.

6. A recital in a deed executed by a trustee, in derogation of his trust, of the payment of the purchase money, is not sufficient evidence of payment in behalf of the grantees' heirs, as against the cestui que trust.

7. In effecting partition of lands held in common, one tenant conveyed by warranty deed to the husband of the other, and afterwards purchased the interest of the wife's heirs. In an action at law by such tenant against the husband's grantee, estoppel by the tenant's warranty was pleaded, and decided adversely to defendant; judgment being given the tenant for a one-third interest, and he being remitted to equity for further relief. Held, in the equitable suit thereupon instituted, that the judgment was res judicata on the issue of estoppel.

8. A grantor by warranty deed of lands impressed in the grantee's hands with a resulting trust is not estopped by his warranty from acquiring the interest of the cestui que trust.

9. On December 27, 1838, a deed was made to a husband of realty impressed in his hands with a resulting trust in favor of his wife. The wife died in 1841. On May 4, 1848, the husband conveyed. The wife's infant heirs came of age and conveyed their interests by deeds executed between February, 1855, and September, 1862. The husband died May 29, 1884. In November, 1892, parties claiming under the wife's heirs brought ejectment against parties claiming under the husband's grantee, setting up an entire legal title to all the realty. They recovered a one-third interest, it being adjudged that as to the balance they had no title at law. On January 18, 1895, suit was begun by them in equity. Held, that the latter suit was not barred; the statute of limitations not beginning to run against the wife's heirs till the accrual to them of a right of entry on the husband's death, and the action at law being to enforce the same rights as the suit in equity.

Bill by Melville S. Condit and others, as executors of Andrew B. Cobb, deceased, against George Bigalow and others. On bill, answer, replication, and proofs. Decree for plaintiffs.

Mahlon Pitney, for complainants. John W. Harding, for defendants.

54 A.-11

EMERY, V. C. The object of this bill is to establish a resulting trust in lands which were conveyed in fee to William C. H. Waddell, under whom defendants claim title. The complainants claim under the wife of Waddeli, and allege that the conveyance to Waddell was made for the purpose of a partition or division between the devisees of one Lemuel Cobb, the father of Mrs. Waddell, of some of the lands devised by him to Mrs. Waddell and others, and that the husband, on taking the conveyance of these lands in his name, must be held to have taken the conveyance as trustee for his wife. The legal title of the husband at the time of the conveyance was that of tenant by the curtesy initiate in the undivided interest (onethird) of the lands to which his wife was entitled. If the transaction in which the conveyance to the husband was made was in fact a partition or division by deed between the tenants in common of the fee, it is claimed that the deed should have been made to the wife, and that, if made to the husband, he will (for the interest therein beyond his life estate) hold the legal estate conveyed by the deed as trustee for the wife. That a trust results in favor of the wife is the settled rule, where the wife's money or separate estate pays for land to which the husband takes title. Lathrop v. Gilbert (Williamson, Ch.; 1855) 10 N. J. Eq. 344; City Nat'l Bank v. Hamilton (Van Fleet, V. C.; 1881) 34 N. J. Eq. 158; Irick v. Clement (Err. & App. 1892) 49 N. J. Eq. 590, 27 Atl. 434. And the same rule applies on a partition or division of lands, where the wife, as one of the tenants in common, is entitled to the conveyance, and her husband takes title to her share. Weeks v. Haas (Gibson, C. J.; 1842); 3 Watts & S. 520, 39 Am. Dec. 39; Freeman on Partition, sec. 406. On this branch of the case the defendants raise the question whether the transaction is to be treated as a partition among the devisees, and claim that, by reason of the directions of the will, it is not to be treated as a partition. The lands were part of the residue of Lemuel Cobb's estate, as to which his will was as follows: "Third. I divide all the residue of my real and personal estate into four equal parts or shares, one share thereof I give and bequeath to Benjamin Howell, of Troy, the husband of my daughter Elizabeth, one other share I give and bequeath to Walter Kirkpatrick, nevertheless in trust for Eugene Kirkpatrick, the only son of my daughter Maria C. Kirkpatrick, one other share I give and bequeath to my daughter Julia Ann [Mrs. Waddell] and the remaining share I give and bequeath to my son Andrew B. Cobb-to have and to hold to each of them their heirs and assigns forever. I do hereby nominate, constitute and appoint my son Andrew B. Cobb, Walter Kirkpatrick and Benjamin Howell executors to this my Testament and last will. I do hereby order and direct my executors hereinabove named

or a majority or the survivor or survivors | of them, to grant, bargain and sell all or any part of the residue of my estate called the third item & divide the moneys arising therefrom among the legatees therein mentioned." It is claimed that this direction amounted to an equitable conversion of the residuary real estate, and that the partition of the lands in question (which was the third partition between the devisees) should be considered in equity as a division of the proceeds of sale, and that, the husband being at the time of the partition (1838) absolutely entitled to the wife's personal estate, he should be considered as holding the lands as proceeds of sale and as the proceeds of his own money.

The doctrine of equitable conversion is a branch of the general equitable doctrine of trusts, and has been adopted solely for the purpose of executing trusts, and it is essential to the application of the doctrine of conversion that the property should be subject to a trust or imperative direction for conversion. Where, as in this case, there is no devise of the legal estate to the execu. tors, and their control over the legal estate, which is vested in others, is solely that of a power of sale, the question is whether it is a mere naked power of sale, the exercise of which must be discretionary, or whether it is a power in trust, the exercise of which is imperative. The execution of powers in trust may be required in equity for the benefit of the beneficiaries entitled, but, when the trustee of the power is clothed with a discretion as to its execution, the court will not control the discretion. Brown v. Higgs, 8 Ves. 561, 569 (1803); 2 Pom. Eq. sec. 1002, and cases cited; 2 Story, Eq. Jur. sec. 1601. And in order to give rise to an equitable or constructive conversion, the direction to convert must be imperative, and the conversion must not be left to the option of the donee or trustee. Cook's Ex'r v. Cook's Adm'r (Zabriskie, Ch.; 1869) 20 N. J. Eq. 375, 379. In this will there is first an absolute devise in fee of the legal estate to the devisees, then an appointment of executors, with a direction to sell following this appointment. The direction is not a direction to sell all his residuary estate, but all or any; and these words, "or any," necessarily imply, as it seems to me, the power or option of selling or not selling some of the land, in their discretion. If the power be construed to be imperative, it can only be upon the theory that all of the real estate must be sold by the executors. If as to any of the real estate the sale need not be made, then, plainly, an option as to conversion exists. Such option might be controlled by the court, in proper cases, for the benefit of the beneficiaries; but, where an option or discretion to be exercised exists, the doctrine of constructive conversion is not applicable. Directions of most positive and imperative character would be required in this case to

deprive the devisees of the legal estate of the right to retain the land, as land, because the proceeds of sale, if any sale be made, are by the will to go to the devisees of the land. It is the more rational conclusion. therefore, that the testator by vesting an immediate fee simple in all his lands in his devisees, by virtue of which they were entitled to immediate possession and enjoyment of the lands upon his death, intended them to have the lands, subject only to a power of sale of any of the lands, if the executors (being three of the four devisees) thought best for the estate to sell; and, if such sale were made, the devisees, and no other persons, should receive the proceeds. This construction of the power to sell as a discretionary and not as an imperative power makes the will, and every word of it, operative, and harmonizes with its general plan.

Another reason why the doctrine of constructive conversion cannot be held effective in this case to convert the land into money is that by the partition an equitable reconversion, as it is called, took place. "By such reconversion the prior constructive conversion is annulled, and the converted property is restored in equity to its original actual quality." 3 Pom. Eq. sec. 1175, etc. Mrs. Waddell and the legatees of the proceeds of sale joined in the series of releases and conveyances which released from the power of sale the shares of the lands devised to the trustees and to Mrs. Waddell. There is no question that her deed in which her husband joined had this effect, and that thereafter the lands conveyed to the trustees were freed from the operation of the power or trust. In consideration of the release to each of the other devisees, Mrs. Waddell was entitled to a release to herself of the remaining lands, and it must be presumed that the conveyance to the husband was intended to be for her benefit. The transaction cannot be considered as in any sense a sale to Waddell by the executors as trustees, for, treated as a sale, it would have been a breach of duty in all three concerned to have given Waddell the absolute interest in the share of lands to which his wife was entitled in consideration of her conveyance to the executors themselves, as individuals, of the wife's interest in the other lands, which it was also their duty to sell for the common benefit of the devisees. The only view of the transaction consistent with an honest intention of the parties to protect the rights of Mrs. Waddell is that a partition between all the parties interested was intended, and that by ignorance or oversight the deed for Mrs. Waddell's share was made to her husband without declaring her right. In one of the former partitions the deed to Waddell did declare that the conveyance was made to him in right of his wife, and in the chancery suit, hereinafter referred to, the final decree made the same declaration as to the lands included in the partition now in question.

The contention of complainant that the deed to Waddell from the other devisees for the interest in the lands to which his wife was entitled on a partition is to be treated in equity as a payment to the husband of money to which he was entitled as his own, under this will, depends, it will be observed, upon the establishment (1) of an equitable constructive conversion of the lands into money by the will; (2) a constructive sale by the executors; and (3) a constructive reduction to possession of the purchase money by the husband-all accomplished by a transaction which on the face of it was plainly intended to be a simple partition of lands, removing them from the operation of the power of sale. The doctrine of equitable conversion, as between husband and wife, in relation to the proceeds of sale of her lands, is never held to be applicable unless a valid sale has in fact taken place. Frank v. Bollans (1868) L. R. 3 Ch. App. 717. It does not, in my judgment, extend to a case like this. So far, therefore, as Waddell, the husband, is concerned, and those claiming under him, with notice, the land conveyed must be impressed with a resulting trust in favor of the wife and those claiming under her.

As to notice, I conclude, upon the whole evidence in the case, that John W. Bigalow, to whom Waddell conveyed the premises in fee in 1848, after the death of his wife, had notice that the conveyance to his grantor was made upon a partition or division in which his grantor's wife furnished the consideration-the substantial facts which raise the trust. This notice he received by his own deed, and the inquiries to which it necessarily led. The conveyances to the other devisees and tenants in common were referred to as the real consideration for the conveyance to Waddell; the other consideration -$1-being nominal. This statement of the consideration of itself suggested a partition or division so strongly as to put a purchaser on inquiry, and' Bigalow was chargeable, also, with notice that the actual title which Waddell held, and as to which his conveyance was altogether valid (that of a tenant by the curtesy in the lands), was derived from Lemuel Cobb. Mrs. Waddell had died in 1847, and the deed to Bigalow was made in 1848. Notice to Bigalow was also given by chancery suit pending at the time of the purchase, brought in 1833 by Waddell and his wife against the executors to assert their rights in the lands devised by Lemuel Cobb; the bill praying, among other things, that they might be let into possession of a fair and just share of the testator's real estate 80 devised to them by the residuary clause of the will, or that the executors or a master might be decreed to make a sale, and that a receiver be appointed. Walter Kirkpatrick was appointed receiver of the lands at the October term, 1835, by an order in the cause which directed the receiver (among other things) to lease and collect the rents for the

lands embraced in the residuary clause, and to divide the lands and personal estate among the persons in interest according to their rights under the will of Lemuel Cobb. The receiver was directed to report his proceedings under the order to the court. The deed to Waddell made in December, 1838, and now in question, was executed and acknowledged before Walter Kirkpatrick, the receiver, who died subsequently, and before the conveyance to Bigalow. Mrs. Waddell died in 1841, and in February, 1848, the suit was revived in the name of her infant heirs as co-complainants. This revivor was prior to Bigalow's purchase (May 4, 1848), and the suit was, in my judgment, notice to Bigalow at the time of his purchase that his grantor's interest in the lands in question arose under the will of Lemuel Cobb, that he had received the same on a division and in the right of his wife, and that the heirs of Mrs. Waddell had succeeded to the interest of their mother in the lands purchased from Waddell. Mrs. Waddell died in 1841-within three years after the third partition of the lands made while the suit for accounting and division was pending. The suit was under the control of her husband, and as her children and heirs at law were infants, whose interests could not be impaired by a mere delay in the prosecution, I think the delay of the husband in the prosecution of the suit from 1838 to 1848 did not operate to deprive the suit of its effect as notice to persons claiming under the husband and adversely to the infant heirs of the wife. Taking the entire circumstances of the case as disclosed by the paper title of Waddell and the chancery suit at the time of the conveyance, there can be no reasonable doubt, I think, that Bigalow was put upon inquiry as to whether the title of Waddell under this partition was not held in trust for his wife. It should also be noted that Bigalow's actual payment of the purchase money has not been proved. The burden of proving such payment is on the purchaser, and the recital of the payment in the deed is not, as against the cestui que trust, sufficient evidence of the payment. 1 Perry on Trusts, sec. 219. Defendants are volunteers claiming under Bigalow, as his heirs at law, and they stand, therefore, in his position, as to the claim of bona fide purchase.

A third question-that of alleged estoppel -arises under the following circumstances: Andrew B. Cobb, one of the executors and devisees under the will of Lemuel Cobb, and one of the tenants in common, joined in the execution of the deed to Waddell; and in this deed, which on its face granted an absolute fee in the land, Andrew B. Cobb, covenanted, along with the other grantors, to warrant and defend the lands against himself and all persons claiming under him. Andrew B. Cobb subsequently, and between February 6, 1855, and September 18, 1862, purchased the title and interest of the children of Mrs. Waddell in the lands. He died

in January, 1873, and the complainants, as his executors and devisees, are by this bill prosecuting his rights acquired by the deed of Mrs. Waddell's heirs subsequent to his own deed of warranty. The question is whether the subsequently acquired title of the grantor inures to the benefit of the grantee by reason of the warranty, and by way of estoppel against the grantor. In my judg-| ment, the doctrine of estoppel does not apply to this case, and for two reasons: First. In an action at law brought by complainants against defendants to recover possession of the lands, in which action an undivided onethird interest was recovered, the same question as to estoppel under the deed was raised, and was decided adversely to the defendants, in reference to the one-third interest. This decision settles, as between the parties, the law of this case in reference to the alleged estoppel, in a court of law; and upon a purely legal question, such as estoppel, this court would follow the decision at law, made in a suit between the same parties, upon the effect of the deed as an estoppel. And even were not the question thus res adjudicata, the opinion of Mr. Justice Magie that under this deed there was no estoppel at law-should be followed, as an authoritative exposition of the law upon the subject, under our decisions. Second. The title now prosecuted is one claimed or derived originally under and from the grantee of the deed. The cestuis que trustent claim under the grantee as their trustee in equity, and an equitable title so derived from a resulting trust imposed on the grantee by the circumstances of the conveyance is a title derived from the grantee, as clearly as if the grantee had, upon the conveyance to him, executed a declaration of trust or a conveyance to the beneficiaries. As to a title derived from the grantee himself, the doctrine of estoppel is, even at law, held not to be applicable. 11 A. & E. Ency. Law (2d Ed.) 412. This is not a question of applying in equity (and as following the law) the legal doctrine of estoppel by warranty, for the purpose of increasing the grantee's estate conveyed by the deed, but the fundamental question here is whether the conveyance of the legal estate was a conveyance in trust. If so, the controlling feature of the case is the enforcement of the equitable trust, and the general rule is that, as against all except bona fide purchasers, the trust will be enforced; and, inasmuch as the rights of the cestuis que trustent are assignable, the trust will be enforced in favor of the assignees. The precise question, therefore, is whether the subsequent assignment by the cestuis que trustent of their equitable rights to the grantor operates in favor of the trustee grantee, because of the grantor's warranty. Estoppel by warranty is based on the fundamental principles of giving effect to the manifest intention of the grantor, appearing on the deed, as to the

lands or estate to be conveyed, and of preventing the grantor's derogating from or destroying his own grant by any subsequent act. 2 Sm. Lead. Cas. (8th Ed.) 855 et seq.; Van Rensselaer v. Kearney, 11 How. 297, 13 L. Ed. 703; Staffordville Gravel Co. v. Newell (Err. & App. 1890) 53 N. J. Law, 412, 19 Atl. 209; Hannon v. Christopher (Van Fleet, V. C. 1881) 34 N. J. Eq. 459. The enforcement of the trust upon which the legal estate was conveyed to the grantee in this instance executes the entire purpose of the conveyance. The grantor, therefore, should no more be restricted by the doctrine of estoppel from fairly purchasing the cestuis que trustent's rights against the grantee which arose from the conveyance, and enforcing their rights, than he should be estopped by the warranty from directly aiding the beneficiaries against the trustee to have the trust declared, if the trustee repudiates the trust upon which the lands are conveyed. That the legal title to the lands should be held by the husband in trust for the wife is the aspect in which a court of equity looks at the transaction as a whole, between all the parties-grantor, grantee, and beneficiary. The enforcement of the trust in favor of the beneficiary, against the grantee and those holding legal title under him, with notice of the trust, is the controlling equitable aspect of the case; and the covenants of the grantor as to title and warranty cannot be made to operate, by estoppel or otherwise, to convey to the trustee any portion of the equitàble interest or estates for which the legal title was, by the very circumstances and presumed intention of the conveyance, held in trust.

The remaining defense raised is that of laches in bringing the suit. It is claimed that the statute of limitations is a bar to the suit, and that, even if this statute be not applicable, the delay is a bar. The deed to Waddell was made on December 27, 1838, and Mrs. Waddell died in 1841. Upon her death, Waddell became tenant by the curtesy, and on May 4, 1848, conveyed the lands in question to John W. Bigalow. Mrs. Waddell's infant children and heirs at law came of age subsequently, and conveyances of their interests in the land were made to their uncle Andrew B. Cobb by several deeds executed between February, 1855, and September, 1862. Andrew B. Cobb died in January, 1873, and Waddell, the tenant by the curtesy, died May 29, 1884. The statutes of limitations do not, expressly or in terms, affect equitable suits; but courts of equity, in enforcing equitable rights or remedies, give effect to the statute. The extent to which effect is given to the statute depends somewhat on the nature of the equitable juriɛdiction invoked. Where the suit is based on a legal right, and the appeal is to the auxil iary jurisdiction of this court, and equitable aid is sought for the purpose of removing the obstructions to complainant's legal right,