a delay in the application for equitable aid will not ordinarily, or in the absence of special equities, bar the equitable right, unless the legal right is barred. Burne v. Partridge, 61 N. J. Eq. 434, 48 Atl. 770, and cases cited pages 436, 437, 61 N. J. Eq., and page 771, 48 Atl. Where the substantive right asserted is one as to which the jurisdiction in equity is concurrent with that at law, the statute of limitations is a bar in equity as well as at law. Conover v. Conover (1831) 1 N. J. Eq. 403; Marsh's Ex'rs v. Oliver's Ex'r (Green, Ch.; 1862) 14 N. J. Eq. 259. Where the right asserted or the remedy sought is purely equitable, the applicability of the statute depends to some extent upon the special character of the equitable right asserted or remedy sought. If the right claimed rests upon an express or direct and subsisting trust, clearly established, the statute of limitations is not held to be a bar, and such trust will be enforced unless there has been an express repudiation of the trust, and a holding adverse to the trust continued for the time fixed by the statute of limitations. Allen's Adm'r v. Woolley's Ex'rs (1839) 2 N. J. Eq. 209; Starkey v. Fox (Green, V. C. 1894) 52 N. J. Eq. 758, 29 Atl. 211, affirmed on appeal in 53 N. J. Eq. 239, 34 Atl. 1135; Stimis v. Stimis (McGill, Ch.; 1895) 54 N. J. Eq. 17, 33 Atl. 468, and cases cited page 21, 54 N. J. Eq., and page 469, 33 Atl. If the jurisdiction is for the application of remedies purely equitable, such as specific performance, cancellation of instruments, and the like, the period of delay which will be fatal does not depend upon the statute of limitations, but will be considered and determined with reference mainly to the circumstances and effect of the delay in the particular case, and the suit may be dismissed for delay less than the period fixed by the statute limiting the pursuit of legal remedies. The general equitable rule applicable to this class of cases is that which requires vigilance in the prosecution of rights. A late case on the Court of Errors and Appeals (Lutjen v. Lutjen [Nov. 1902] 53 Atl. 625) collects and reviews our decisions illustrating the application of the doctrine of laches in cases of this character. The bill in this case was filed to set aside the release of a legacy given to an administratrix, upon the ground of fraud; and, under the circumstances, a delay of nine years and eight months was held fatal. In cases of equitable titles to real estate, courts of equity will apply the period of limitation of the legal estates of an analogous character. 2 Story, Eq. Jur. sec. 1520. Where the trust is an implied or constructive trust, the statute is applicable. McClane's Adm'x v. Shepherd's Ex'x, 21 N. J. Eq. 76. And where, by reason of an implied trust, a court of equity declares equitable estate to exist, equity follows the law in applying the bar of the statute to the equitable estates so created. Hovenden v. Lord Annesley, 2 Sch. & Lef. (Lord Redes

dale, 1805) 607, 611, 632, 637, is the leading case upon the application of the statute to equitable estates; Hall v. Otterson (Green, V. C.; 1894) 52 N. J. Eq. 522, 28 Atl. 907, and cases cited page 533, 52 N. J. Eq., and page 911, 28 Atl., for the rule that a cestui que trust whose equitable interest is reversionary is not bound to assert his title until it comes into possession. Thompson v. Simpson, 1 Dr. & War. 489; Life Assoc., etc., v. Siddal, 3 De G. F. & J. 58; 2 Perry, Trusts, sec. 860.

The present case is one where an implied or constructive trust is alleged and has been sufficiently proved. The trust arises from the payment of the purchase money of land, and in equity this trust is made effective by holding that equitable interests or estates in the land, proportionate to or dependent on the proportion of the purchase money paid, are created, or, in technical language, result from the payment. In the present case an equitable estate in fee in Mrs. Waddell, subject to her husband's tenancy by the curtesy, resulted by operation of law from her ownership, subject to this right. During the continuance of the marriage the statute of limitations did not run, in equity, against the wife and in favor of her husband (Yeomans v. Petty, 40 N. J. Eq. 495, 4 Atl. 631; Alpaugh v. Wilson, 52 N. J. Eq. 424, 28 Atl. 722, affirmed on appeal in Wilson v. Alpaugh, 52 N. J. Eq. 589, 33 Atl. 50); and after the death of the wife the statute did not run against the children until they arrived at age. The tenancy by the curtesy did not expire until Waddell's death, in 1884. In November, 1892, the complainants brought suit in ejectment against the defendants to recover possession of lands now in dispute, claiming the entire legal title to all of the lands. In that suit it was decided that the plaintiffs were entitled to recover the equal, undivided, one-third part, but that as to the other two-thirds they had no title at law. Final judgment was entered in this action in February, 1894, and the present bill was filed January 18, 1895. The applicability of the statute depends on the question whether this suit is to be considered as substantially one where the object is to establish and enforce an equitable estate or interest in land. If it is, then, following the analogy of the statute of limitations applicable to legal estate, the action is not barred until the right of entry would have been lost on a legal title. Such right of entry accrued on the death of the tenant for life. Pinckney v. Burrage, 31 N. J. Law, 21. In my opinion, the suit is essentially a suit to declare the equitable estates which arose out of and resulted from the payment of the purchase money of the conveyance, and to give to the cestuis que trustent the enjoyment of these estates in the same manner and to the same extent they would have been entitled to the enjoyment of the legal estate, had the legal title been made to Mrs. Waddell, who paid

the consideration. The statute should not be applied or begin to run against Mrs. Waddell's heirs or their grantee until after the termination of the life estate of her husband. This relief from the operation of the statute against Mrs. Waddell and those claiming under her from 1838 to the death of the tenant by the curtesy, in 1884, is the exact situation which the transaction would have assumed, had the conveyance of the legal title been made in 1838 to Mrs. Waddell, as it should have been; and neither Waddell, nor those claiming under him in this case, have shown any special equitable circumstances which entitle them to call upon this court to make the equitable titles or interests in the land in question less extensive than the legal title would have been, had it been properly made. I will advise a decree for complainants.

JEROLAMAN v. JEROLAMAN. (Court of Chancery of New Jersey. Feb. 13, 1903.)

SEPA

DIVORCE-DRUNKENNESS CRUELTY RATION-DUTY OF HUSBAND-EVIDENCE. 1. Where a separation between husband and wife occurs because of the drunkenness and cruelty of the husband, on failure of the husband to reform, and after such reformation, and within two years, to seek out his wife, and apply to return, giving her reasonable assurances of the sincerity of his reformation, a divorce for desertion is properly granted.

2. Upon an issue as to whether a husband, who had become separated from his wife because of his drunkenness and cruelty, had within two years reformed his habits and offered to resume marital relations, the evidence showed that a person who, at his request, had talked to the wife about a reconciliation, had advised the wife not to live with her husband, and had told him that she had given this advice. The only other witness to prove the husband's reformation was the man who kept the saloon in which the husband was employed, and his statements as to the husband's drinking habits and disposition when drunk were opposed to the weight of evidence. Held, that a reformation and desire to return was not sufficiently established.

Petition by Mary A. Jerolaman against William P. Jerolaman. Heard on petition, answer, and proofs. Decree for petitioner.

A. A. Clark, for petitioner. Samuel S. Swackhamer, for defendant.

EMERY, V. C. The evidence in the case showed satisfactorily that the separation of the parties was legally chargeable to the cruelty of the husband. The acts of cruelty proved occurred for the most part, it is true, when the defendant was under the influence of liquor; but for many years, and up to the time of the separation, the condition was habitual. On the final act of cruelty on May 30, 1898, when the husband threatened shooting with a revolver which he had, and pursued his wife, who had taken it from his pocket, with a chair, and out of the house,

1. See Divorce, vol. 17, Cent. Dig. §§ 127, 132.

she had him arrested. Since that time he has not been at the house, which belongs to the wife, and the separation has continued. The question in the case is whether the separation was continued and obstinate on his part for two years after that time. The separation in this case was, as I have stated, legally chargeable to the husband, and under the rule applied in cases of this character it was the duty of the husband to reform his habits, and after such reformation, and within the two years, seek out his wife, and apply to return, giving her reasonable assurances of the sincerity of his reformation, and of her probable safety in resuming marital relations. McVickar v. McVickar, 46 N. J. Eq. 490, 501, 19 Atl. 249, 19 Am. St. Rep. 422 (Pitney, V. C., 1890). Defendant insists that he has 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 wife on visiting the wife, and talking with her about the reconciliation, and the husband's previous conduct, advised the wife not to live with her husband, and returned to the husband, and told him she had given his wife this advice. The only other witness to prove the husband's reformation and desire to return was the man who kept the saloon or store and poolroom in which defendant is employed. This witness' evidence is not satisfactory. His statements as to the defendant's former drinking habits and his disposition when drunk are certainly opposed to the weight of evidence in the case, and, as the substance of his interview is denied by the wife, I am not willing to rely on his evidence as the basis for finding that the wife was in fault for not taking the husband back into her house. The evidence for defendant does show that the defendant at the present time, and for some time past, has not been drinking, but that the reformation commenced before the two years expired is not satisfactorily shown.

I will advise a decree for petitioner.

(204 Pa. 321) HOUSTON v. WESTERN WASHINGTON R. CO.

(Supreme Court of Pennsylvania. Jan. 5, 1903.)

EMINENT DOMAIN-EVIDENCE-DECLARATIONS OF OWNER.

1. In an action to recover damages for property taken by a railroad company, declarations of the owner of the land as to its value, and his offer of it at a certain price, and a sale of a portion thereof, are admissible to show his esti mate of value.

Appeal from court of common pleas, Washington county; McIlvaine, Judge.

Action by William B. Houston against the Western Washington Railroad Company. From the judgment, defendant appeals. Reversed.

On the trial of the cause the following record was made:

"Plaintiff was called as for cross-examination, and was asked this question: 'Q. Was that option on the whole farm?' Offer asked for, and purpose. 'I propose to prove by the witness on the stand that he gave one or more options on the ground which was crossed by the Western Washington Railroad at or about the time of the location of the road over this land, and that he sold a large part of land, including all that covered by the right of way of the railroad, immediately after the location and construction of the railroad, at a better price per acre than its value before the erection and location of the railroad; and for the purpose of showing a greater market value in the land immediately after the location and erection of the Western Washington Railroad, than immediately before. (Objected to as incompetent and irrelevant, and as not the proper measure of damages, and for the further reason it is not proposed to ask the witness the price at which the land was optioned before the occupation by the said railroad and the price at which it was optioned or sold after the construction of the road.) The Court: Objection sustained. Offer overruled. I do not think that would be the proper measure of damages, or throw any light on the issue here. (On request of defendant, exception allowed and sealed.) It is proposed to prove by the witness on the stand by way of crossexamination that for some time prior to the location of the Western Washington Railroad over his land he had been making efforts to sell his land, and that his efforts culminated in an option, executed a short time before the location of the road; to prove what the price was as stipulated in the option, and that with all his special efforts that was the very best price that he was able to obtain in the market for his land; to prove also by him that a few weeks after the location of the road, and before its completion, he sold a large part of the land to the same party, including the entire railroad track, and all that part of his farm which his witnesses have said was injuriously affected by the location of the road-the purpose being to show by this cross-examination, in connection with other testimony already in, that the price for which he actually did sell the land was more than the price he agreed to sell it for in the option; that to be followed by other testimony showing that that increased price was the direct result of the location of this railroad over this man's land, and that it arose from causes which were special to this farm, and not general to the neighborhood; the ultimate purpose being to meet the testimony of the plaintiff already in that the location of the road had depreciated the value of his farm, and also to aid the jury in determining how much the farm was worth immediately before the location of the railroad and bow much it was worth immediately after

the location, as affected by that railroad, and in that way aid them in determining whether this plaintiff is entitled to any damages, and, if so, how much. (Objected to as incompetent and irrelevant, and as not the proper measure of damages. Also because the offer is argumentative. It asks the court to find facts not supported by the testimony. It does not offer to show the price at which the farm was sold-) We offer to show also, and meant to include it in the offer as a part of the offer, and for the same purpose, the price at which he actually did sell the land immediately after the location of the road, and before its completion. (Objections renewed, and objected to further for the reason that the offer does not meet the purpose for which it was made.) The Court: Objection sustained, and offer overruled, and, on request of defendant, exception allowed and sealed.' Defendant offers in evidence the record of the deed from William B. Houston to Francis L. Robbins, dated June 11, 1900, conveying a certain tract of land situate in Chartiers township, Washington county, Pennsylvania, which is described. (Objected to as incompetent. This is the deed for the ninety-four acres. Purpose asked for.) "The purpose is to show the date at which the title passed from William B. Houston. The Court: How is that material to the case?' "To show it is to be taken into consideration as part of the whole farm in estimating damages, and that we are entitled to any benefits that arose on that part of the farm at that time. The Court: There is no claim at all that you are not entitled to benefits when they are claiming they have been injured.' Offered for the further purpose of showing what the actual consideration was. (Objected to as incompetent and irrelevant.) "The Court: Objection sustained, and offer overruled. It does not make any difference what the land was sold at by the landowner after the land was taken and appropriated.'"

Argued before MCCOLLUM, C. J., and MITCHELL, DEAN, FELL, BROWN, MESTREZAT and POTTER, JJ.

S. S. Robertson, M. L. A. McCracken, and W. O. McNary, for appellant. A. G. Braden and C. W. Campbell, for appellees.

MESTREZAT, J. The first and fourth assignments were abandoned on the argument of the case because the errors complained of were not assigned in accordance with the rules of court. In the second assignment of error the appellant complains of the rejection of its offer to show the price at which the plaintiff optioned his land a short time before the location of the railroad and the price at which he sold a large part of it shortly after the road had been located, and before its completion, for the purpose, as we understand, of giving to the jury the plaintiff's own estimate of the value of the land at those dates as evidence of the damages sus

tained by him in the construction of the defendant company's road over his land. The offer was to be followed by testimony showing that the increased price was the direct result of the location of the railroad over the plaintiff's land, and that it arose from causes which were special to this farm, and not general to the neighborhood. The third assignment alleges error in rejecting the deed, which was offered for the purpose of fixing the price at which that part of the premises was sold which the plaintiff's witnesses testified was injuriously affected by the location of the road. This offer must be considered in connection with the testimony, the exclusion of which is complained of in the second assignment.

Declarations against one's interest, unless made with a view to an adjustment of the differences between the parties, are always admissible against the party making them. For this reason the declarations or acts of a party showing his estimate of the value of his property at or about the time it is taken are evidence to his prejudice in proceedings to assess the damages for land taken under the right of eminent domain. In 10 Am. & Eng. Ency. of Law (2d Ed.) 1154, it is said: "Upon the ground that the admission of a party to his prejudice in a matter material to the issue is always competent, the admissions of the owners of property, the condemnation of which is sought, that the property had only a certain value, have been considered admissible." And in Lewis on Eminent Domain, section 439, the author says: "In regard to the proof of admissions of the parties, the same general rules apply as in other 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 he has offered to sell it, and other admissions which are pertinent to the issue." But the question raised here has been considered and determined by this court. In East Brandywine, etc., R. R. Co. v. Ranck, 78 Pa. 454-a condemnation proceeding-it was held that the declarations of the owner of the land as to its value, his offer of it at a fixed price, and sale of a portion of it, are evidence on the question of damages, as constituting his estimate of the value. In that case we said, Paxson, J.: "As evidence bearing upon the value of this property, Ranck's own declarations were certainly competent when offered by the company. His offer of it at a fixed price and the sale of a portion of it were facts proper to go to the jury as constituting his estimate of its value. It is true the sale of a portion of the property does not fix with certainty its market value as a whole, but it is an element fair to be considered by the jury. If one-half of the property had been sold for more than he had valued the whole of it prior to the opening of the road, surely the jury would have a right to consider such a circumstance in passing upon his claim for damages." The offers should have been more

explicit, and the purpose of the proposed evidence more clearly stated; but, as we understand the offers, the testimony should have been admitted. As said in the opinion in the Ranck Case, "while the evidence referred to was not conclusive, nor perhaps very important, it ought not to have been excluded."

The second and third assignments of error are sustained, and the judgment is reversed, with a venire facias de novo.

(204 Pa. 339)

SHAFFER et ux. v. HARMONY BOROUGH. (Supreme Court of Pennsylvania. Jan. 5, 1903.)

DEFECTIVE SIDEWALK-CONTRIBUTORY

NEGLIGENCE.

1. For two years a sidewalk had been in a dangerous condition because of holes in the railroad ties, of which it was in part made, caused by decay. Plaintiff knew of such holes, and stepped on a tie, which appeared to be sound, some distance from a hole, and it broke through, and she was severely injured. Hell, that the question of plaintiff's contributory negligence was for the jury.

Appeal from court of common pleas, Butler county; Greer, Judge.

Action by John E. Shaffer and Josephine Shaffer against Harmony Borough. Judgment for plaintiffs for $1,550, and defendant appeals. Affirmed.

Argued before MCCOLLUM, C. J., and MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

John H. Wilson, Lev. McQuistion, and J. C. Vanderlin, for appellant. S. F. Bowser and A. L. Bowser, for appellees.

FELL, J. The only question argued by the appellants is whether binding instructious should have been given the jury to find for the defendant because of the contributory negligence of Josephine Shaffer. There was a sidewalk on but one side of the street. This walk was made partly of planks and partly of broken stones and cinders. At a place where a driveway leading to a vacant lot crossed the walk, old railroad ties were laid side by side lengthways of the pavement, and covered with fine furnace slag. For two years this part of the walk had been in a dangerous condition because of holes in the ties caused by decay. Of this condition the borough authorities had express notice long before the accident. Mrs. Shaffer knew that there were holes in the ties, and, to avoid them, she stepped on a tie, some distance from a hole, which appeared to her to be perfectly sound and safe. This tie had decayed from the bottom or inside, and the heel of her shoe broke through the crust on the upper surface, and she fell, and was severely injured. Under these circumstances she could not be charged with

1. See Municipal Corporations, vol. 36, Cent. Dig.

§ 1755.

contributory negligence, unless it be held that the existence of the holes indicated a state of decay which made it unsafe to step on any part of the ties, although their upper surfaces appeared to be sound, and that she should have known this. Evidently the court could not so have held. Whenever there is reasonable doubt as to the inferences to be drawn from the facts established by the testimony, the question of negligence is necessarily for the jury. City of Erie v. Magill, 101 Pa. 616, 47 Am. Rep. 739, is not in point. The plaintiff in that case attempted to cross a high ridge of ice which sloped at an acute angle across the sidewalk. The danger was manifest, and could easily have been avoided. In this case the person injured acted with caution, and attempted to avoid the only danger of which she knew, and in so doing was exposed to a peril of which she had no knowledge.

The judgment is affirmed.

(204 Pa. 329)

JONES v. SOWERS.

(Supreme Court of Pennsylvania. Jan. 5, 1903.)

OPTION CONTRACT-NOTICE OF ACCEPTANCE

WAIVER.

1. Where defendant gave an option on certain coal, to be delivered on notice in writing of an election to take the same, the right to receive written notice could be waived by parol.

2. Where plaintiff had an option for the purchase of certain coal from defendant, and, under the contract, was to send a written notice of the acceptance of the option, and he sent such a notice by an agent, who read it to the vendor, and notified him that it would be served upon him on the date fixed for its acceptance in the option, a statement by the vendor that he would not accept the notice, and that he intended to keep the coal, was a waiver of further notice.

Appeal from court of common pleas, Washington county.

Bill by John H. Jones against Warren Sowers for specific performance. Decree for plaintiff, and defendant appeals. Affirmed.

Argued before McCOLLUM, C. J., and MITCHELL, DEAN, FELL, BROWN, MESTREZAT, and POTTER, JJ.

R. W. Irwin and John C. Bane, for appellant. A. M. Todd and J. A. Wiley, for appellee.

POTTER, J. This is a bill for the specific performance of a contract for the sale of coal. On May 19, 1899, the defendant, Warren Sowers, executed and delivered to J. A. Ray a written contract for the sale of the Pittsburg vein of coal, underlying a tract of ground containing some 200 acres. He agreed to convey the coal, by good and sufficient deed, clear of incumbrances, provided that on or before March 19, 1900, the said Ray gave him notice in writing of his election to take and accept the said coal, and

paid him therefor the sum of $20 per acre upon the delivery of the deed and confirmation of title. The course of events with reference to the acceptance of this option is set out by the court below in the third and fourth findings of fact, as follows: "(3) Sometime in February, 1900, J. A. Ray elected to purchase the coal described in said written contract, and, as expressive of that election, signed, at his office, in Pittsburg, Pennsylvania, a writing, which is in words and figures set out below, and sent the same to John Closser, a justice of the peace, who resides in this county near the residence of Warren Sowers, with directions to serve the same upon him. Copy of notice: 'March 19, 1900. To Warren Sowers: I hereby notify you that I elect to take the coal underlying your farm with mining and other rights and privileges optioned to me. J. A. Ray.' (4) In the latter part of February, 1900 (twenty days or more before the expiration of the option to purchase given in said written contract of date May 19, 1899), John Closser, having received this written notice, visited Warren Sowers at his residence to get title papers preparatory to making an abstract of title, and at that time told him that his coal bad been accepted, and read over to him the written acceptance signed by J. A. Ray, set out in the third finding of fact supra, and fully explained the matter to him, and also told him that he would be back again on the day the notice was dated (March 19, 1900), to formally serve it on him, when the defendant said he would not be at home, and said he would not let his coal go. He further said that he would not accept notice, and that he should not serve it on him then; that he would be away on March 19, 1900, the day the ten months' option expired." After finding other facts, the court reached the following conclusion of law: "That J. A. Ray before March 19, 1900, elected to take and accept the coal in question as provided in the written contract of date May 19, 1899, and of this the defendant had legal notice, so that the contract of May 19, 1899, became a binding contract for the sale of said coal by the defendant to J. A. Ray, his heirs. or assigns." And he further found that the plaintiff was entitled to a decree of specific performance.

It is contended on behalf of the appellant that the notice of an election to purchase the coal was, under the terms of the contract, to be a written notice, and that it could only be served by giving to Warren Sowers a written copy thereof. If the defendant had simply stood upon the letter of the agreement, and if there had been nothing in his conduct to show that he intended to dispense with the requirement of a written notice, or that he intended to prevent the performance of the contract, he would be in a position to question whether the admitted facts as to the service of notice upon him of the acceptance of the contract showed a strict