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a delay in the application for equitable aid dale, 1805) 607, 611, 632, 637, is the leading will not ordinarily, or in the absence of spe case upon the application of the statute to cial equities, bar the equitable right, unless equitable estates; Hall v. Otterson (Green, the legal right is barred. Burne v. Partridge, V. C.; 1894) 52 N. J. Eq. 522, 28 Atl. 907, 61 N. J. Eq. 434, 48 Atl. 770, and cases cited and cases cited page 533, 52 N. J. Eq., and pages 436, 437, 61 N. J. Eq., and page 771, page 911, 28 Atl., for the rule that a cestui 48 Atl. Where the substantive right as que trust whose equitable interest is reverserted is one as to which the jurisdiction in sionary is not bound to assert his title until equity is concurrent with that at law, the it comes into possession. Thompson v. Simpstatute of limitations is a bar in equity as son, 1 Dr. & War. 489; Life Assoc., etc., v. well as at law. Conover v. Conover (1831) Siddal, 3 De G. F. & J. 58; 2 Perry, Trusts, 1 N. J. ; Ex’rs v

sec. 860.

259. Where the right asserted or the remedy or constructive trust is alleged and has been sought is purely equitable, the applicability sufficiently proved. The trust arises from the of the statute depends to some extent upon payment of the purchase money of land, and the special character of the equitable right in equity this trust is made effective by holdasserted or remedy sought. If the right ing that equitable interests or estates in the claimed rests upon an express or direct and land, proportionate to or dependent on the subsisting trust, clearly established, the stat proportion of the purchase money paid, are ute of limitations is not held to be a bar, and created, or, in technical language, result from such trust will be enforced unless there has the payment. In the present case an equitabeen an express repudiation of the trust, and ble estate in fee in Mrs. Waddell, subject to a holding adverse to the trust continued for her husband's tenancy by the curtesy, rethe time fixed by the statute of limitations. sulted by operation of law from her ownerAllen's Adm'r v. Woolley's Ex'rs (1839) 2 N. ship, subject to this right. During the conJ. Eq. 209; Starkey V. Fox (Green, V. C. tinuance of the marriage the statute of lim1894) 52 N. J. Eq. 758, 29 Atl. 211, affirmed itations did not run, in equity, against the on appeal in 53 N. J. Eq. 239, 34 Atl. 1135; wife and in favor of her husband (Yeomans Stimis v. Stimis (McGill, Ch.; 1895) 54 N. J. V. Petty, 40 N. J. Eq. 495, 4 Atl. 631; Al. Eq. 17, 33 Atl. 468, and cases cited page 21, | paugh v. Wilson, 52 N. J. Eq. 424, 28 Atl. 54 N. J. Eq., and page 469, 33 Atl. If the 722, affirmed on appeal in Wilson v. Alpaugh, jurisdiction is for the application of reme 52 N. J. Eq. 589, 33 Atl. 50); and after the dies purely equitable, such as specific per death of the wife the statute did not run formance, cáncellation of instruments, and against the children until they arrived at the like, the period of delay which will be age. The tenancy by the curtesy did not fatal does not depend upon the statute of expire until Waddell's death, in 1884. In limitations, but will be considered and de- November, 1892, the complainants brought termined with reference mainly to the cir suit in ejectment against the defendants to cumstances and effect of the delay in the recover possession of lands now in dispute, particular case, and the suit may be dis claiming the entire legal title to all of the missed for delay less than the period fixed lands. In that suit it was decided that the by the statute limiting the pursuit of legal plaintiffs were entitled to recover the equal, remedies. The general equitable rule appli- | undivided, one-third part, but that as to the cable to this class of cases is that which re other two-thirds they had no title at law. quires vigilance in the prosecution of rights. Final judgment was entered in this action A late case on the Court of Errors and Ap in February, 1894, and the present bill was peals (Lutjen v. Lutjen (Nov. 1902] 53 Atl. filed January 18, 1895. The applicability of 625) collects and reviews our decisions illus the statute depends on the question whether trating the application of the doctrine of this suit is to be considered as substantially laches in cases of this character. The bill in one where the object is to establish and enthis case was filed to set aside the release force an equitable estate or interest in land. of a legacy given to an administratrix, upon If it is, then, following the analogy of the the ground of fraud; and, under the circum statute of limitations applicable to legal esstances, a delay of nine years and eight tate, the action is not barred until the right months was held fatal. In cases of equita of entry would have been lost on a legal ble titles to real estate, courts of equity will title. Such right of entry accrued on the apply the period of limitation of the legal death of the tenant for life. Pinckney v. estates of an analogous character. 2 Story, Burrage, 31 N. J. Law, 21. In my opinion, Eq. Jur. sec. 1520. Where the trust is an the suit is essentially a suit to declare the implied or constructive trust, the st ute is equitable estates which arose out of and applicable. McClane's Adm's v. Shepherd's resulted from the payment of the purchase Ex'x, 21 N. J. Eq. 76. And where, by reason money of the conveyance, and to give to the of an implied trust, a court of equity declares cestuis que trustent the enjoyment of these equitable estate to exist, equity follows the estates in the same manner and to the same law in applying the bar of the statute to the extent they would have been entitled to the equitable estates so created. Hovenden v. enjoyment of the legal estate, had the legal Lord Annesley, 2 Sch. & Lef. (Lord Redes title been made to Mrs. Waddell, who paid

.

the consideration. The statute should not be she had him arrested. Since that time he has
applied or begin to run against Mrs. Wad not been at the house, which belongs to the
dell's heirs or their grantee until after the wife, and the separation has continued. The
termination of the life estate of her husband. question in the case is whether the separa-
This relief from the operation of the statute tion was continued and obstinate on his part
against Mrs. Waddell and those claiming un for two years after that time. The separa-,
der her from 1838 to the death of the tenant tion in this case was, as I have stated, legal-
by the curtesy, in 1884, is the exact situation | ly chargeable to the husband, and under the
which the transaction would have assumed, rule applied in cases of this character it was
had the conveyance of the legal title been the duty of the husband to reform his babits,
made in 1838 to Mrs. Waddell, as it should and after such reformation, and within the
have been; and neither Waddell, nor those two years, seek out his wife, and apply to
claiming under him in this case, have shown return, giving her reasonable assurances of
any special equitable circumstances which the sincerity of his reformation, and of her
entitle them to call upon this court to make probable safety in resuming marital relations.
the equitable titles or interests in the land in McVickar v. McVickar, 46 N. J. Eq. 490,
question less extensive than the legal title 501, 19 Atl. 249, 19 Am. St. Rep. 422 (Pitney,
would have been, had it been properly made. V. C., 1890). Defendant insists that he has
I will advise decree for complainants. established this, but, in my judgment, he has

not. He has never himself been at the
house, and one of the persons whom he sent

to visit his wife-Mrs. Bowers, a clergyman's JEROLAMAN V. JEROLAMAN. wife-on visiting the wife, and talking with (Court of Chancery of New Jersey. Feb. 13,

her about the reconciliation, and the hus1903.)

band's previous conduct, advised the wife not

to live with her husband, and returned to the DIVORCE-DRUNKENNESS CRUELTY SEPA

RATION-DUTY OF HUSBAND-EVIDENCE. husband, and told him she had given his 1. Where a separation betweeu husband and wife this advice. The only other witness to wife occurs because of the drunkenness and

prove the husband's reformation and desire cruelty of the husband, on failure of the hus. band to reform, and after such reformation,

to return was the man who kept the saloon and within two years, to seek out his wife, and or store and poolroom in which defendant is apply to return, giving her reasonable assur employed. This witness' evidence is not satances of the sincerity of his reformation, a

isfactory. His statements as to the defenddivorce for desertion is properly granted. 2. Upon an issue as to whether a husband,

ant's former drinking habits and his disposiwho had become separated from his wife be tion when drunk are certainly opposed to the cause of his drunkenness and cruelty, had with weight of evidence in the case, and, as the in two years reformed his habits and offered to resume marital relations, the evidence show

substance of his interview is denied by the ed that a person who, at his request, had talk. wife, I am not willing to rely on his evi. ed to the wife about a reconciliation, had ad dence as the basis for finding that the wife vised the wife not to live with her husband,

was in fault for not taking the husband back and had told him that she had given this ad. vice. The only other witness to prove the hus

into her house. The evidence for defendant band's reformation was the man who kept the does show that the defendant at the present saloon in which the husband was employed, time, and for some time past, has not been and his statements as to the husband's drinking habits and disposition when drunk were op

drinking, but that the reformation commen-
posed to the weight of evidence. Held, that :: ced before the two years expired is not sat-
reformation and desire to return was not sufti- isfactorily shown.
ciently established,

I will advise a decree for petitioner.
Petition by Mary A. Jerolaman against
William P. Jerolaman. Heard on petition,
answer, and proofs. Decree for petitioner.

(204 Pa. 321) A. A. Clark, for petitioner. Samuel S.

HOUSTON v. WESTERN WASHINGTON R. Swackhamer, for defendant.

(Supreme Court of Pennsylvania. Jan. 5, EMERY, V. C. The evidence in the case

1903.) showed satisfactorily that the separation of

EMINENT DOMAIN-EVIDENCE-DECLARATIONS the parties was legally chargeable to the

OF OWNER. cruelty of the husband. The acts of cruelty 1. In an action to recover damages for propproved occurred for the most part, it is true, erty taken by a railroad company, declarations when the defendant was under the influence

of the owner of the land as to its value, and his

offer of it at a certain price, and a sale of a of liquor; but for many years, and up to

portion thereof, are admissible to show his estithe time of the separation, the condition was mate of value. habitual. On the final act of cruelty on May 30, 1898, when the husband threatened shoot

Appeal from court of common pleas, Washing with a revolver which he had, and pur

ington county; Mcllvaine, Judge. sued his wife, who had taken it from his

Action by William B. Houston against the pocket, with a chair, and out of the house,

Western Washington Railroad Company.

From the judgment, defendant appeals. Re[ 1. See Divorce, vol. 17, Cent. Dig. $$ 127, 132. versed.

CO.

On the trial of the cause the following rec- , the location, as affected by that railroad, and ord was made:

in that way aid them in determining whether "Plaintiff was called as for cross-examina this plaintiff is entitled to any damages, and, tion, and was asked this question: "Q. Was if so, how much. (Objected to as incompethat option on the whole farm? Offer asked tent and irrelevant, and as not the proper for, and purpose. 'I propose to prove by the measure of damages. Also because the offer witness on the stand that he gave one or is argumentative. It asks the court to find more options on the ground which was cross facts not supported by the testimony. It ed by the Western Washington Railroad at does not offer to show the price at which the or about the time of the location of the road farm was sold-) We offer to show also, over this land, and that he sold a large part and meant to include it in the offer as a part of land, including all that covered by the of the offer, and for the same purpose, the right of way of the railroad, immediately aft price at which he actually did sell the land er the location and construction of the rail immediately after the location of the road, road, at a better price per acre than its value and before its completion. (Objections rebefore the erection and location of the rail. newed, and objected to further for the rearoad; and for the purpose of showing a son that the offer does not meet the purpose greater market value in the land immediate for which it was made.) The Court: Objecly after the location and erection of the tion sustained, and offer overruled, and, on Western Washington Railroad, than immedi request of defendant, exception allowed and ately before. (Objected to as incompetent sealed. Defendant offers in evidence the and irrelevant, and as not the proper meas record of the deed from William B. Houston ure of damages, and for the further reason to Francis L. Robbins, dated June 11, 1900, it is not proposed to ask the witness the price conveying a certain tract of land situate in at which the land was optioned before the Chartiers township, Washington county, occupation by the said railroad and the price | Pennsylvania, which is described. (Objected at which it was optioned or sold after the to as incompetent. This is the deed for the construction of the road.) The Court: Ob ninety-four acres. Purpose asked for.) “The jection sustained. Offer overruled. I do not purpose is to show the date at which the ti. think that would be the proper measure of tle passed from William B. Houston. The damages, or throw any light on the issue Court: How is that material to the case ?' bere. (On request of defendant, exception "To show it is to be taken into consideration allowed and sealed.) It is proposed to prove as part of the whole farm in estimating damby the witness on the stand by way of cross ages, and that we are entitled to any benefits examination that for some time prior to the that arose on that part of the farm at that location of the Western Washington Railroad time. The Court: There is no claim at all over his land he had been making efforts to that you are not entitled to benefits when sell his land, and that his efforts culminated they are claiming they have been injured.' in an option, executed a short time before Offered for the further purpose of showing the location of the road; to prove what the what the actual consideration was. (Objectprice was as stipulated in the option, and ed to as incompetent and irrelevant.) 'The that with all his special efforts that was the Court: Objection sustained, and offer oververy best price that he was able to obtain in ruled. It does not make any difference what the market for his land; to prove also by the land was sold at by the landowner after him that a few weeks after the location of the land was taken and appropriated.'" the road, and before its completion, he sold a Argued before McCOLLUM, C. J., and large part of the land to the same party, in MITCHELL, DEAN, FELL, BROWN, MEScluding the entire railroad track, and all that TREZAT and POTTER, JJ. part of his farm which his witnesses have

S. S. Robertson, M. L. A. McCracken, and said was injuriously affected by the location

W. 0. McNary, for appellant. A. G. Braden of the road-the purpose being to show by

and C. W. Campbell, for appellees. this cross-examination, in connection with other testimony already in, that the price for which he actually did sell the land was more MESTREZAT, J. The first and fourth asthan the price he agreed to sell it for in the signments were abandoned on the argument option; that to be followed by other testi of the case because the errors complained of mony showing that that increased price was were not assigned in accordance with the the direct result of the location of this rail rules of court. In the second assignment of road over this man's land, and that it arose error the appellant complains of the rejection from causes which were special to this farm, of its offer to show the price at which the and not general to the neighborliood; the ul- plaintiff optioned his land a short time before uimate purpose being to meet the testimony the location of the railroad and the price at of the plaintiff already in that the location which he sold a large part of it shortly after of the road had depreciated the value of his the road had been located, and before its farm, and also to aid the jury in determin completion, for the purpose, as we undering how much the farm was worth immedi stand, of giving to the jury the plaintiff's ately before the location of the railroad and own estimate of the value of the land at bow much it was worth immediately after those dates as evidence of the damages sus

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taiped by him in the construction of the de explicit, and the purpose of the proposed evi-
fendant company's road over his land. The dence more clearly stated; but, as we under-
offer was to be followed by testimony show stand the offers, the testimony should have
ing that the increased price was the direct been admitted. As said in the opinion in the
result of the location of the railroad over the Ranck Case, “while the evidence referred to
plaintiff's land, and that it arose from causes was not conclusive, nor perhaps very im-
which were special to this farm, and not gen portant, it ought not to have been excluded."
eral to the neighborliood. The third assign The second and third assignments of error
ment alleges error in rejecting the deed, are sustained, and the judgment is reversed,
which was offered for the purpose of fixing with a venire facias de novo.
the price at which that part of the premises
was sold which the plaintiff's witnesses tes-
tified was injuriously affected by the location

(204 Pa. 339) of the road. This offer must be considered SHAFFER et us. v. HARMONY BOROUGH. in connection with the testimony, the exclu

(Supreme Court of Penusylvania. Jan. 5, sion of which is complained of in the second

1903.) assignment.

DEFECTIVE SIDEWALK-CONTRIBUTORY Declarations against one's interest, unless

NEGLIGENCE. made with a view to an adjustment of the

1. For two years a sidewalk had been in a differences between the parties, are always dangerous condition because of holes in the admissible against the party making them. railroad ties, of which it was in part made, For this reason the declarations or acts of a

caused by decay. Plaintiff knew of such holes,

and stepped on a tie, which appeared to be party showing his estimate of the value of

sound, some distance from a hole, and it broke his property at or about the time it is taken through, and she was severely injured. Helil, are evidence to his prejudice in proceedings

that the question of plaintiff's contributory to assess the damages for land taken under

negligence was for the jury. the right of eminent domain. In 10 Am. & Appeal from court of common pleas, ButEng. Ency. of Law (20 Ed.) 1154, it is said: ler county; Greer, Judge. "Upon the ground that the admission of a Action by John E. Shaffer and Josephine party to his prejudice in a matter material Shaffer against Harmony Borough. Judgto the issue is always competent, the admis- | ment for plaintiffs for $1,550, and defendant sions of the owners of property, the condem appeals. Affirmed. nation of which is sought, that the property Argued before McCOLLUM, C. J., and had only a certain value, have been consid MITCHELI, DEAN, FELL, BROWN, MES. ered admissible." And in Lewis on Eminent TREZAT, and POTTER, JJ. Domain, section 439, the author says: "In regard to the proof of admissions of the par

John H. Wilson, Lev. McQuistion, and J. ties, the same general rules apply as in other

C. Vanderlin, for appellant. S. F. Bowser

and A. L. Bowser, for appellees. cases. It is competent to prove the declarations of the owner of the property in question as to its value and the price at which FELI, J. The only question argued by he has offered to sell it, and other admissions the appellants is whether binding instrucwhich are pertinent to the issue." But the tions should have been given the jury to question raised here has been considered and

find for the defendant because of the condetermined by this court. In East Brandy- | tributory negligence of Josephine Shaffer. wine, etc., R. R. Co. v. Ranck, 78 Pa. 454-a There was a sidewalk on but one side of condemnation proceeding-it was held that

the street. This walk was made partly of the declarations of the owner of the land as planks and partly of broken stones and cinto its value, his offer of it at a fixed price,

ders. At a place where a driveway leading and sale of a portion of it, are evidence on

to a vacant lot crossed the walk, old railroad the question of damages, as constituting his ties were laid side by side lengthways of the estimate of the value. In that case we said, pavement, and covered with fine furnace Paxson, J.: “As evidence bearing upon the slag. For two years this part of the walk value of this property, Ranck's own declara- had been in a dangerous condition because tions were certainly competent when offered

of holes in the ties caused by decay. Of by the company. His offer of it at a fixed this condition the borough authorities had price and the sale of. a portion of it were express notice long before the accident. Mrs. facts proper to go to the jury as constituting

Shaffer knew that there were holes in the his estimate of its value. It is true the sale ties, and, to avoid them, she stepped on a of a portion of the property does not fix with tie, some distance from a hole, which apcertainty its market value as a whole, but peared to ber to be perfectly sound and safe. it is an element fair to be considered by the This tie had decayed from the bottom or in. Jury. If one-half of the property had been

side, and the heel of her shoe broke through sold for more than he had valued the whole the crust on the upper surface, and she fell, of it prior to the opening of the road, surely

and was severely injured. Under these cir. the jury would have a right to consider such cumstances she could not be charged with a circumstance in passing upon his claim for

[ 1. See Municipal Corporations, vol. 36, Cent. Dig. damages." The offers should have been more $ 1755.

contributory negligence, unless it be held that paid him therefor the sum of $20 per acre the existence of the holes indicated a state upon the delivery of the deed and confirmaof decay which made it unsafe to step on tion of title. The course of events with referany part of the ties, although their upper ence to the acceptance of this option is set surfaces appeared to be sound, and that she out by the court below in the third and fourth should have known this. Evidently the court findings of fact, as follows: "(3) Sometime could not so have held. Whenever there is in February, 1900, J. A. Ray elected to purreasonable doubt as to the inferences to be chase the coal described in said written condrawn from the facts established by the tract, and, as expressive of that election, testimony, the question of negligence is neces signed, at his office, in Pittsburg, Pennsylsarily for the jury. City of Erie v. Magill, vania, a writing, which is in words and fig. 101 Pa. 616, 47 Am. Rep. 739, is not in ures set out below, and sent the same to point. The plaintiff in that case attempted John Closser, a justice of the peace, who to cross a high ridge of ice which sloped at resides in this county near the residence of an acute angle across the sidewalk. The Warren Sowers, with directions to serve the danger was manifest, and could easily have same upon him. Copy of notice: 'March 19, been avoided. In this case the person in 1900. To Warren Sowers: I hereby notify jured acted with caution, and attempted to you that I elect to take the coal underlying aroid the only danger of which she knew, your farm with mining and other rights and and in so doing was exposed to a peril of privileges optioned to me. J. A. Ray.' (4) which she had no knowledge.

Ju the latter part of February, 1900 (twenty The judgment is affirmed.

days or more before the expiration of the option to purchase given in said written con

tract of date May 19, 1899), John Closser, (204 Pa. 329)

having received this written notice, visited JONES V. SOWERS.

Warren Sowers at his residence to get title (Supreme Court of Pennsylvania. Jan. 5,

papers preparatory to making an abstract of 1903.)

title, and at that time told him that his coal

bad been accepted, and read over to him the OPTION CONTRACT-NOTICE OF ACCEPTANCEWAIVER.

written acceptance signed by J. A. Ray, set 1. Where defendant gave an option on cer

out in the third finding of fact supra, and tain coal, to be delivered on notice in writing fully explained the matter to him, and also of an election to take the same, the right to told him that he would be back again on the receive written notice could be waived by pa

day the notice was dated (March 19, 1900), . rol. 2. Where plaintiff had an option for the pur

to formally serve it on him, when the dechase of certain coal from defendant, and, un fendant said he would not be at home, and der the contract, was to send a written notice

said he would not let his coal go. He furof the acceptance of the option, and he sent such a notice by an agent, who read it to the

ther said that he would not accept notice, and vendor, and notified him that it would be servo that he should not serve it on him then; that ed upon him on the date fixed for its accept he would be away on March 19, 1900, the ance in the option, a statement by the vendor

day the ten months' option expired.” After that he would not accept the notice, and that he intended to keep the coal, was a waiver of

finding other facts, the court reached the further notice.

following conclusion of law:' "That J. A. Ray

before March 19, 1900, elected to take and Appeal from court of common pleas, Wash

accept the coal in question as provided in ington county. Bill by John H. Jones against Warren

the written contract of date May 19, 1899,

and of this the defendant had legal notice, Sowers for specific performance. Decree for

so that the coutract of May 19, 1899, became plaintiff, and defendant appeals. Affirmed.

a binding contract for the sale of said coal Argued before McCOLLUM, C. J., and MITCHELL, DEAN, FELL, BROWN,

by the defendant to J. A. Ray, his heirs, or

assigns.” And he further found that the MESTREZAT, and POTTER, JJ.

plaintiff was entitled to a decree of specific R. W. Irwin and John C. Bane, for appel- performance. lant. A. M. Todd and J. A. Wiley, for ap It is contended on behalf of the appellant pellee.

that the notice of an election to purchase the

coal was, under the terms of the contract, POTTER, J. This is a bill for the specific to be a written notice, and that it could only performance of a contract for the sale of be served by giving to Warren Sowers a coal. On May 19, 1899, the defendant, War written copy thereof. If the defendant had ren Sowers, executed and delivered to J. A. simply stood upon the letter of the agreeRay a written contract for the sale of the ment, and if there had been nothing in his Pittsburg vein of coal, underlying a tract of conduct to show that he intended to dispense ground containing some 200 acres. He with the requirement of a written notice, agreed to convey the coal, by good and suf or that he intended to prevent the performficient deed, clear of incumbrances, provided ance of the contract, he would be in a pothat on or before March 19, 1900, the said sition to question whether the admitted facts Ray gave him notice in writing of his elec as to the service of notice upon him of the tion to take and accept the said coal, and acceptance of the contract showed a strict

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