Exceptions overruled, report confirmed, | when she had a right to bring such suit. and petition dismissed.

ities from the burden of supporting abandon- | was to procure support from her husband in ed wives, and that such proceedings further- such suit. more provide merely for support for a single year, and therefore must be repeated from year to year.

Under the circumstances of this case, I feel bound to overrule the exception upon the authority of the Kyle Case. It is true that the opinion of Vice Chancellor Pitney in that case does not distinguish between the New York law and our law in respect of the civil remedies which are open to an abandoned wife, upon which distinction the above-mentioned argument on behalf of the petitioner in this case is based. It would, however, I think, be unsafe to assume that the learned Vice Chancellor was not fully informed as to the New York law in question. At any rate, under the circumstances of this case, I feel bound by this adjudication as a precedent and feel it my duty to leave it for the appellate court to overrule or modify or distinguish a decision of this court which for all that appears has remained unquestioned, and no doubt has been followed in other cases continuously for the last 18 years.

I think that it must be conceded that this argument has great weight, and, apart from the authority of the Kyle Case, in some cases of the kind to which the present one belongs, might be conclusive. In New Jersey the deserted wife, whose actual object in suing her husband is merely to obtain support, has her option after the desertion has continued for two years to proceed under section 26, leaving the marriage relation unaffected, or to sue for a divorce and procure support as an incident to such suit. If, in the state of New York, the deserted wife has no such option, in fact has no suit for maintenance at any time except as a part of or an incident to a suit for divorce, and is therefore in case of desertion compelled to seek a judicial separation by a decree of limited divorce in order to obtain support, it is difficult to see why the institution of such a suit by her should necessarily be deemed an acquiescence in the separation. In such case the wife merely deals with the situation which is forced upon her by the wrongful act of her husband. Where, therefore, her suit is meritorious, whether it results in a decree in the New York court or not, when she brings her subsequent suit (Court of Errors and Appeals of New Jersey.

The result is that the exceptions will be overruled, the master's report will be confirmed, and the petition will be dismissed.

(80 N. J. Eq. 520) WILBUR v. JONES

November 18, 1912.)

Evidence in a proceeding to foreclose a mortgage on realty held sufficient to show that it was given as additional collateral security for the payment of a chattel mortgage.

for absolute divorce in New Jersey, may she not say: "I did not acquiesce in the separa- 1. MORTGAGES (§ 25*)-ACTION TO FORECLOSE tion, nor did I willingly bring a suit to have SUFFICIENCY OF EVIDENCE-COLLATERAL the separation sanctioned and decreed by the SECURITY. court. My husband, by his wrongful conduct, compelled me to bring such a suit in order to obtain from him the support which he was unlawfully withholding. At any time he might have terminated the separation, or at any rate applied to the court for such termination, which action on his part would have compelled me to determine whether or not I desired the suit to proceed to decree or the decree to stand in case decree had been entered."

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 29-42, 1364; Dec. Dig. § 25.*] 2. MORTGAGES (§ 37*)-PAROL EVIDENCE-ABSOLUTE MORTGAGE AS COLLATERAL.

Evidence is admissible to show a parol was executed, that the mortgage, though absoagreement, made when a mortgage of realty lute in terms, was given as additional collateral security for the payment of the mortgagor's attempt to vary the terms of a written instruIchattel mortgage; such evidence not being an ment by parol.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 97-107; Dec. Dig. § 37.*] 3. MORTGAGES (§ 319*)—ACTION TO FORECLOSE

-ADMISSIBILITY OF EVIDENCE.

Upon the mortgagor's defense of payment of a realty mortgage, evidence as to the reason security for the payment of a chattel mortgage, for the giving of such mortgage as collateral and the subsequent payment of the chattel mortgage, was admissible.

In the present case, however, it appears that before the wife commenced her action in New York the husband came to New Jersey, established himself upon his farm in this state, and became domiciled here and has remained domiciled ever since. The wife has remained a resident of New York, and it is the continued residence of the husband in New Jersey which establishes the jurisdiction of this court to grant the wife a divorce if a case of willful, continued, and obstinate desertion has been established. Thus it is clear that the wife had it in her power to come over to New Jersey and sue her husband for maintenance only, but that she elected to sue him in New York by publication for a divorce from bed and board, although it may be that her principal object *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 86 A.-49

[Ed. Note. For other cases, see Mortgages, Cent. Dig. 88 855-863, 875, 913, 1356, 1366; Dec. Dig. § 319.*]

4. MORTGAGES (§ 298*) — PAYMENT OPERA

TION.

collateral or additional security for the payWhere a real estate mortgage is given as ment of the mortgagor's chattel mortgage, the

A mortgage is first a covenant to pay a sum of money upon an expressed consideration, and as such is an executory contract, and second it is an executed conveyance of land to secure the debt with a defeasance, and liable to be defeated if at the time it is sought to be enforced there is nothing due upon the executory contract it was given to secure.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 1, 51; Dec. Dig. § 1.*

For other definitions, see Words and Phrases, vol. 5, pp. 4596-4606; vol. 8, p. 7725.]

[1] "The only living witness to the transaction and of the delivery of the deed by Emson to Jones and the making of the mortgage in question is Captain Charles Ewan Merritt, of Mount Holly, a member of the bar, who represented Mr. Jones; Senator Emson representing himself. Captain Merritt testified that the sale from Emson to Jones was for $3,800, paid as follows: A mortgage of $2,500 to clients of his, $100 cash paid by Jones, and $1,200 in a chattel mortgage made by Jones to Emson. He further says that after this transaction Senator Emson stated to him (Merritt) in his office that he (Emson) had asked Jones to give him a mortgage on the real estate for $600 as security for his

6. EXECUTORS AND ADMINISTRATORS (§ 456*)—$1,200 chattel mortgage; that that might not ACTIONS COSTS-PERSONS ENTITLED.

Where a bill is filed in good faith by an executrix to foreclose a mortgage on land, securing a note absolute in terms, given to her testator, and the mortgagor successfully defends on the ground that it was given as additional security for the payment of a chattel mortgage which has been paid, a decree for defendant canceling the mortgage will not be allowed to carry costs; the defendant's indifference in failing to properly protect himself being the cause of the filing of the bill by the complainant.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. 88 1941-1967; Dec. Dig. 456.*]

'pan out' to $1,200, and there was, in his
judgment, something more than $2,500 in the
real estate, and he wanted a mortgage for
$600 as further security for the indebtedness
of $1,200, and asked Captain Merritt what
objection he had to it, and he replied that it
was with Mr. Jones and him (Emson); what-
ever they decided to do was right and they
could do it. He then says that Mr. Emson
wrote the $600 mortgage in his office, and
that Mr. Jones 'accepted' it in his (Merritt's)
presence for the purpose mentioned. It ap-
pears that Captain Merritt told Mrs. Wilbur

Appeal from Court of Chancery.
Bill by Hannah Emson Wilbur against Wil- several years ago that he could not recollect

llam C. Jones. Decree for defendant, and
complainant appeals. Affirmed.

the figures for which the property was sold, but he said in explanation that since that time his attention had been called to the

The opinion of the Vice Chancellor was as whole matter, and he had gone over and extollows: amined letters that he wrote to Mr. Jones, and that the whole thing had come back to him.

"The entire premises, real and personal, which figured in the transaction were a lot with a dwelling house and drug store thereon erected, and the stock in trade in the store. They were owned by a man named Compton, who conveyed them to a man named Butterworth to secure a debt of $900. Butterworth offered the entire premises to the defendant Jones for $3,800. Compton also owed Emson $900, and he (Emson), learning of the offer Butterworth had made to

"The bill in this cause was filed to foreclose a mortgage for $600 made by the defendant, William C. Jones, to the late Ephriam P. Emson November 29, 1894, and contains this recital: 'Said $600 is part payment as purchase money.' The mortgagee died in June, 1896. No interest was paid on the mortgage to him in his lifetime, and none has been paid to his executrix since his death. Mr. Jones was married at the time the mortgage was given, but his wife did not join in it, and the bill alleges that, because the mortgage was a purchase-money mortgage, its lien is superior to the inchoate Jones, got Butterworth, with Compton's conright of dower of Mrs. Jones. The defendants, Mr. and Mrs. Jones, answer and say that the mortgage in question was given as collateral security for the payment of a chattel mortgage of $1,200 made by Mr. Jones to Senator Emson on November 28, 1894, the day before the making of the real estate mortgage, and that because the chattel mortgage has been fully paid and satisfied there is nothing due on the real estate mortgage, and in a cross-bill they pray that the mortgage for $600 may be delivered up to be canceled. Although these instruments bear different dates, their delivery was contemporaneous, as was also that of a deed from Emson to Jones for the premises upon which the mortgage sought to be foreclosed was given.

sent, to convey the property to him (Emson); he paying Butterworth's claim. On the day he (Emson) and Butterworth settled, Emson told him that he (Emson) had offered the property to Jones for $3,800.

"We come now to a piece of evidence of great cogency. It is a note written by Senator Emson to Mr. Jones December 31, 1894, about a month after the transaction had been consummated, in which Emson asks Jones to send him a note for $1,200 (the $1,200 secured by the chattel mortgage), and says that he (Jones) can send him (Emson) a check for interest and discount or add it to the note, remarking that he (Jones) would owe him (Emson) interest since the day he was at Mt. Holly; that is, the day the transaction

was closed and the papers exchanged. Aft- and proves that he has paid the chattel morter his signature, and at the bottom of the gage, and avers that there is nothing whatnote, in his own handwriting, Senator Em-ever due from him to the complainant on acson adds this statement by way of post-count of the mortgage sought to be foreclosscript: The $1,200 is what is due me as you ed in this cause. This amounts to a defense will recollect.' Senator Emson was a care- of payment, and, upon familiar principles, ful man, a man of considerable business acu- the defendant is entitled to show that he men. He drew his own conveyances and has paid a mortgage sought to be enforced was a man of affairs. One month after against him. Upon the question of payment, this transaction he wrote to Jones about it, the evidence concerning the reason for the and, in my judgment, if Jones owed him the giving of the real estate mortgage, and the $600 mortgage at that time he would have subsequent payment of the chattel mortgage informed him that $1,800 was due him, and (which, under the defendant's contention, opnot $1,200, as stated in the communication. erates as payment of the real estate mortThis declaration of Senator Emson, in his own gage), is receivable. A mortgage has a dual handwriting practically contemporaneous with character: First, it is a covenant to pay a the transaction, when considered in connec- sum of money upon an expressed consideration with all the other evidence in the case, tion; and, second, it is a conveyance of to my mind points unerringly and conclusive land to secure the debt. The first is an execly to the fact that the $600 mortgage on the utory contract, and the second an executed real estate was given and taken as addition- conveyance with a defeasance, and liable to al security for the payment of the $1,200 se- be defeated if at the time it is sought to be cured by the chattel mortgage on the fixtures enforced there is nothing due upon the execand stock in trade in the drug store. utory contract it was given to secure. See Perkins v. Trinity Realty Co., 69 N. J. Eq. 723, 727, 61 Atl. 167, affirmed 71 N. J. Eq. 304, 71 Atl. 1135.

"Upon this whole matter I have no doubt at all but that the real estate mortgage for $600 was given as collateral security for the payment of the $1,200 chattel mortgage, and that, the latter being paid, the former must be canceled.

[2] "On the law of the case much that is apposite is to be found in O'Brien v. Paterson Brewing & Malting Co., 69 N. J. Eq. 117, at page 127, 61 Atl. 437, at page 441, in which Vice Chancellor Pitney said: 'Against any relief is urged the time-honored rule that parol evidence cannot be used to vary or contradict the terms of a written contract. Without stopping at this moment to enumerate and classify the numerous exceptions [6] "There will be a decree for the defendto that rule, especially in a court of equity, ant denying the relief sought by the comit is sufficient to say that the evidence here plainant and ordering the $600 mortgage to relied upon does not tend to vary the terms be surrendered and delivered up for cancellaof the contract. There is no contention that tion, but without costs as against the comthe complainant did not understand that he plainant. The reason for this is that the dewas signing an absolute promissory note in fendant was indifferent enough to make a favor of the defendant, payable one day aft- mortgage absolute on its face, when intended er date, and negotiable in its terms. What only for collateral security, and he could he does contend is that it never had any have protected himself by insisting upon a binding effect upon him in equity. To show proper recital in it. Not having done so, this by parol is no more a breach of the rule and the mortgage coming to the executrix invoked than it is to prove that an absolute of the mortgagee after his death, the exdeed is given as a mortgage, or that a prom-ecutrix, knowing nothing about the origi issory note is given by the maker to the nal transaction, was justified in filing a bill payee without consideration and as an ac- to foreclose the mortgage, and should not commodation to the latter, or that it was giv- be subjected to the payment of costs as the en for a consideration that had wholly fail- mortgagor succeeds only upon an affirmative ed, or was a mere gift, as in Metler v. Met- defense." ler, 18 N. J. Eq. 270, and affirmed on appeal 19 N. J. Eq. 457.'

"The defendant in the case at bar is not attempting by parol evidence to vary the terms of a written instrument, but is asserting a parol agreement made at the time the conveyances were executed, showing that the mortgage sought to be foreclosed, although absolute in terms, was given as additional or collateral security for the payment of the chattel mortgage. And in this I think he has abundantly succeeded on the evidence.

Argued before the CHIEF JUSTICE, and GARRISON, SWAYZE, TRENCHARD, BERGEN, VOORHEES, MINTURN, KALISCH, BOGERT, VREDENBURGH, WHITE, and TREACY, JJ.

Aaron V. Dawes, of Heightstown, for appellant. Samuel A. Atkinson, of Mt. Holly, for respondent.

PER CURIAM. The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice [3-5] "Another thing, the defendant sets up Chancellor Walker, but without costs.

On Motion and Exceptions from Superior thoritatively made, then that entry was a Court, Kennebec County.