(84 N. J. L. 231) 1. SCHOOLS AND SCHOOL DISTRICTS (§ 144*)- Public School Act (4 Comp. St. 1910, p. 4763) § 106a, providing that teachers, after having served 3 years in a district, shall not be subject to a dismissal or reduction of salary, except for inefficiency or misconduct, having been enacted subsequent to section 106, giving the board of education power to make rules as to the payment of salaries, the two acts must be read together as one; the latter governing in case of conflict. [Ed. Note.-For other cases, see Schools and School Districts, Cent. Dig. §§ 308-314; Dec. Dig. § 144.*] 2. SCHOOLS AND SCHOOL DISTRICTS (§ 144*)— PUBLIC SCHOOLS-PAYMENT OF TEACHERSMETHOD. plan of payment of principals and teachers in the employ of this department be changed from the present, or what is known as the ten payment plan, to what is known as the twelve payment plan, the same to become effective in the case of each principal and each teacher upon the next anniversary of the date of his or her employment by this department; that notice of the adoption of this resolution be sent to each principal and teacher forthwith." The prosecutrix complains of this action, refused to accept the reduction of salary or the 12 payment plan, as violative of the supplement to the Public School Act. P. L. 1909, p. 398; Comp. Stats. P. 4763, § 106a. The board of education tendered the prosecutrix $75 for her September salary, which she refused to accept. The prosecutrix appealed to the State Superintendent of Education, who reversed the board of education of the city of Paterson, and the latter in turn appealed to the State Board of Education, which reversed the find Although Public School Act (4 Comp. St. 1910, p. 4762) § 106, authorizes the board of education to make rules governing the engagement or the employment of teachers and principals, the terms and tenure of such employ-ing and adjudication of the State Superinment, the salaries, and time and mode of the tendent, and affirmed the action of the payment thereof, yet, as section 106a, subse- board of education of the city of Paterson. quently enacted provides that after 3 years' con[1, 2] The prosecutrix had served three tinuous employment a teacher shall not be subject to reduction in salary or a dismissal, the consecutive years as such school-teacher, and board of education is without authority to therefore, under section 106a (Comp. Stats. p. change the number of payments of the yearly 4763), she holds her employment during good salary of such teachers from 10, or one each school month, to 12, which includes the vaca- behavior and efficiency, and is not subject to tion months; the latter method not only reduc-a reduction of salary, except for causes speciing the salaries of the teachers by withholding fied in said section, and they are not pertia part of it for two months, but tending to de-nent to the inquiry here. Section 106 of the prive them of part of the salary already earned in case of resignation or death before the expiration of the year. [Ed. Note. For other cases, see Schools and School Districts, Cent. Dig. §§ 308-314; Dec. Dig. § 144.*] Certiorari by Lillian G. Gowdy against the State Board of Education and others to revise an order reversing the judgment of the State Superintendent and affirming the action of the Board of Education of the City of Paterson in changing the method of paying school-teachers. Writ issued, and action set aside. Argued June term, 1912, before SWAYZE, VOORHEES, and KALISCH, JJ. Michael Dunn, of Paterson, for prosecutrix. Thomas F. McCran and Edward F. Merrey, both of Paterson, for respondents. KALISCH, J. The prosecutrix is a schoolteacher in one of the public schools of the city of Paterson, and she had been such teacher for more than three years prior to the 24th of June, 1910, receiving a salary of $900 per school year, payable in ten monthly installments of $90. The school year was a period of ten months commencing on the 1st day of September and ending on the 30th day of June. The board of education of the city of Paterson, on the 24th day of June, 1910, passed the following resolution: "Resolved that the Public School Act (Comp. Stats. p. 4762) in- lations, and the two acts must be read to- that the money was paid as the purchase price, gether. The contention of the prosecutrix is that she is to teach in the public schools from September 1st to June 30th. That the practical operation of the rule in her case would result in withholding from her one-twelfth of $900 for a period of one month and another for a period of two months after she had fully performed her contract. And should she from any cause cease to be a teacher in Paterson before September 1, 1912, she would not receive the full amount of salary called for by her contract. This contention is sound. And it may be added that, if the prosecutrix should die during the term near or at the end of a month and shortly after the term has commenced, her estate would receive less under the 12 payment plan than under the 10. We think that such a result is in effect an impairment of the contract and in clear violation of section 106a. Even if it appeared that by the full performance of the contract the 12 payment plan was more profitable than the 10 payment plan, nevertheless any change made in the contract by the resolution which makes the contract less effective in that it might under certain circumstances tend to reduce the salary of the prosecutrix is a violation of said section. With that view, the resolution is obnoxious to the statute, which prevents a reduction in salary of a teacher who has completed three consecutive years of service. and not as a loan to the one taking the conveyloan, he must overcome it by clear and satisfacance; and, there being evidence of its being a tory proof. [Ed. Note.-For other cases, see Trusts, Cent. Dig. § 128; Dec. Dig. § 86.*] 2. TRUSTS (§ 72*)-RESULTING TRUST-TIME OF ORIGIN. A resulting trust arises from the contemporaneous circumstances, giving the legal and equitable titles different directions; that is. when a deed is taken and the legal title vested in the grantee. Dig. §§ 102, 103; Dec. Dig. § 72.*] DENCE. trust in land' deeded to defendant, held insuffi- [Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 134-137; Dec. Dig. § 89.*] Suit by Henry D. Phillips against Jennie F. Phillips. Bill dismissed. Vroom, Dickinson & Scammell, of Trenton, for complainant. Linton Satterthwait, of Trenton, for defendant. BACKES, V. C. The bill is filed for the purpose of establishing a resulting trust in favor of the complainant in a farm of 88 acres, situate near Trenton in the county of Mercer, the legal title of which is in the defendant. On March 14, 1910, the defendant entered into the following agreement with John L. Weber: "Trenton, N. J., March 14, Whatever dispute there might be over the meaning of the word "monthly," as defined by the latter part of section 106 which reads, "In every contract a month shall be taken to be twenty school days or four weeks of five school days each and the salary specified in every such contract shall be paid in equal monthly installments not later than five days after the close of each month while the school shall be in session," usage in payment, as appears by the case, had interpreted the meaning of the payment "in ten monthly in- fourteenth day of March, 1910, sold to Jennie stallments" to mean "ten installments dur-F. Phillips my farm in Lawrence township, ing the school year." We think, therefore, that there was a reduction in the salary, and that as to the res olution of board of education of the city of Paterson, as to the prosecutrix, who was a teacher under the tenure of office (section 106a), the action was illegal and must be set aside. (81 N. J. Eq. 459) PHILLIPS v. PHILLIPS. (Court of Chancery of New Jersey. May 9, 1913.) 1. TRUSTS (§ 86*)-RESULTING TRUSTS-BURDEN OF PROOF. The burden of establishing a resulting trust is on the party asserting it; and he must prove not only that the consideration for the conveyance was paid by him, or out of his funds, but 1910. This is to certify that I have this Mercer county and state of New Jersey, containing eighty-eight acres, more or less, for three thousand dollars, subject to a mortgage of one thousand dollars, and the said Jennie F. Phillips is to pay fifteen hundred dollars in cash and note at 3 months, for five hundred dollars, with the privilege of renewal with the payment of one hundred and twentyfive each time until the amount of five hundred dollars and interest on same is paid; this agreement to be in force by the payment of five dollars to bind this agreement until March 16, 1910, or until the deed is delivered to said Jennie F. Phillips, as per this agreement." By deed dated March 16th Weber and wife conveyed the premises to the defendant. The complainant paid the consideration price substantially in compliance with the terms of the contract. He claims *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes that the defendant acted as his agent in effecting the purchase, and that because of this, and inasmuch as he had paid the purchase price, a trust resulted in his favor. On the other hand, the defendant's contention is that the purchase money was loaned to her by the complainant and with it she bought the farm for her own use. The testimony of the parties is in irreconcilable conflict; each firmly maintaining his and her own, and denying the other's alleged status. Counsel contend that the burden of proof is upon his opponent, and, because of the other's failure to sustain it, claim a favorable decree. [1] The burden of establishing a resulting trust is on the party asserting it. He must prove, not only that the consideration for the conveyance was paid by him or out of his funds, but also that the money was paid as the purchase price and not as a loan. When there is evidence from which it may be inferred that the money was advanced as a loan, the burden is on him to overcome this inference by clear and satisfactory proof. Cutler V. Tuttle, 19 N. J. Eq. 549, 560; Perry on Trusts (6th Ed.) par. 133. The parties to this transaction are "strangers" in the sense in which that term is used in cases of this kind, and from the mere payment of the purchase price by the complainant a trust would ordinarily be implied, were it not for circumstances which rebut such an implication. [2] A resulting trust arises by operation of law from contemporaneous circumstances which give the legal and equitable titles different directions. It must therefore arise at the instant the deed is taken and the legal title is vested in the grantee, and the situation of the transaction when the title passes is to be looked to, and not the situation preceding or following that time. Krauth v. Thiele, 45 N. J. Eq. 407, 18 Atl. 351. [3] By this, of course, is not meant to exclude an investigation of preceding and subsequent events, which may throw light upon the situation when the title passed. [4] For two years next preceding the purchase, the defendant occupied the land as a tenant, using it for pasture in connection with her homestead farm. More than a year before the conveyance, she treated with the owner for its purchase and obtained a refusal at $3,000. At the beginning of the year 1910 she sought an extension of her tenancy for another year, but the owner declined a renewal and, by representing that he had another likely purchaser, persuaded the defendant to buy. The defendant had made repeated visits to the owner to obtain a better figure, but he was obdurate, and she closed the bargain at his price without consulting, and apparently against the protest of, the complainant. The defendant handed the contract to the complainant, and later on Weber, had it recorded. Both are in the complainant's possession. The defendant executed the $500 note and renewals mentioned in the agreement, until finally the amount was paid. At the instance of the complainant, the defendant executed two mortgages on the farm; one to secure her note of $1,100, the other to secure her bond for $1,750. Upon both the complainant realized. He redeemed the former and also the mortgage of $1,000 on the property when it was conveyed. The parties are first cousins, and until this dispute arose were on very friendly terms. The defendant was engaged in agriculture on an extensive scale on her homestead farm, and other farms adjoining, which she rented. At the complainant's solicitation, she negotiated with him the possession of her homestead farm at a yearly sum of $1,700. Thereafter, she says, upon learning that she had an option on the Weber farm, the complainant offered to provide her with the money to buy it, and, after she concluded the agreement with Weber, the complainant carried out his promise of financial assistance; she aiding him in raising part of the purchase price by executing the securities already referred to. The details of transferring the title she left to the complainant, because he was her friend and she says her attorney in the matter. Her testimony upon the crux of the case is corroborated by two witnesses. Mr. Weber, after verifying the defendant's long-standing option, says that he had difficulty in getting the complainant, from whom he understood the defendant was to obtain it, to pay the purchase money, and that upon one occasion, when dunning the complainant, the latter told him he had nothing to do with the property; that it was Jennie Phillips'; that he helped her with the money and he helped her buy it, and lent her the money, and that every time he asked the complainant for the money he was met with the answer that it was Miss Phillips' money, and he was merely getting it for her. To the inquiry of a Mr. Applegate, as to whether he had bought the place, the complainant replied that Jennie Phillips was the owner; that it belonged to her. That the complainant was not altogether altruistic in advancing the money to the defendant appears from the fact that, in the course of the year, he would become the defendant's debtor to the sum of $1,700 for the rental of the homestead farm. The reason he assigned in camera for putting the legal title to the land in the name of the defendant, and the prelude to a diabolical plot against his wife, which has for its prototype Napoleon's outrage upon Josephine, is not calculated to inspire confidence in the complainant's testimony, nor are any of the attending circumstances, which the complainant enlists in the support of his claim of a resulting trust, out of harmony That Weber demanded of him the purchase | by his admission on cross-examination that price is not in discord. Weber had been in- at that time he had no hold on the latter. formed by the defendant that the complain- The complainant further insists that he ant was to supply the means. This the com- expended $421 in making repairs and implainant affirmed, and only after considera-provements on the Weber farm, and that ble effort was Weber able to obtain the this evinces his ownership. It might have tended in that direction, if his story were true; but it was quite apparent at the hear ing that his account making up this sum was padded. The repairs were none other than those which are customarily made by tenant farmers. money. The continued custody by the complainant of the contract of sale and the deed for the farm, in view of the financial, professional, and blood relationship between the parties, raises no inference against the legal title of the defendant. The absence of an understanding as to when the defendant was to repay the money is alluded to as favorable to the complainant's position; but this is dissipated by the facts that the complainant had then bound himself to the defendant to pay her $1,700 for a one year's use of the homestead farm, and that there was a tacit arrangement between them that their mutual accounts were to be adjusted from time to time, of which the complainant gives evidence when speaking of the use of his five cows by the defendant, for which he says she was to account. The complainant's insistence that he had not arranged with the defendant for the homestead farm until after he had taken possession of part of the Weber land is challenged by his statement that he occupied the Weber farm in the month of February and long before the purchase by the defendant from Weber, and this occupancy is consonant with the defendant's version that the use of the fields on the Weber farm was given by her to the complainant in exchange for 1. CARRIERS (§ 314*)—INJURY TO PASSENGER a like acreage of the homestead farm, which the defendant then had under cultivation. In February of 1910, during the latter pe riod of the defendant's tenancy (the property was purchased March 14th), the complainant went into and now holds possession of the tillable portion of the Weber farm; the defendant retaining the meadow land. The complainant repaired the fences, cleaned up the hedge-row, fertilized the land, and did the usual other things of husbandry. These acts are pointed to by counsel as controlling factors in establishing the complainant's ownership, but to my mind they are not inconsistent with the claim of the defense. As already observed, the complainant, according to the defendant's story, had hired the homestead farm and was let into possession of part of the Weber farm while the defendant was still a tenant and before the agreement of purchase had been made, in lieu of equal acreage under cultivation, retained by the defendant, on the homestead farm. While the complainant denies that there had been any negotiations for the homestead farm, his operations upon the Weber farm are explainable only upon the theory that he had at that time in some way interested himself in the larger tract of land, for it is not reasonable that he would have undertaken the tilling of part of the small farm, which was without house or buildings, unless it was in connection with a larger enterprise. The complainant has not sustained the burden of proof. The weight of the evidence is clearly with the defense that the complainant advanced the purchase price as a loan. The bill will be dismissed, with costs. (84 N. J. L. 329) HESS v. PUBLIC SERVICE RY. CO. (Court of Errors and Appeals of New Jersey. April 24, 1913.) (Syllabus by the Court.) PLEADING-DECLARATION. A declaration, which avers that a street car of defendant was by its servants slowed plaintiff to defendant's servants operating the down almost to a standstill upon notice by car, for the purpose of permitting plaintiff safely to board such car as a passenger, and that said defendant by its servants then and there requested plaintiff to board said car to become a passenger therein, and that while said plaintiff was so boarding said car it was suddenly speeded up, to plaintiff's injury, is not bad on general demurrer. Cent. Dig. §§ 1260, 1270, 1273, 1274, 1276[Ed. Note.-For other cases, see Carriers, 1280; Dec. Dig. § 314.*] 2. PLEADING (§ 8*)-CONCLUSION OF LAW. The word "request" in such declaration does not imply a conclusion of law. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 12-282; Dec. Dig. § 8.*1 3. CONCLUSION OF LAW. Kennedy v. North Jersey Street Railway Co., 72 N. J. Law, 19, 60 Atl. 40, distinguished. Error to Supreme Court. Action by John Hess against the Public Service Railway Company. From a judgment of the Supreme Court affirming the judgment, sustaining a demurrer to the declaration, plaintiff brings error. Reversed and remanded. Harry Kalisch, of Newark, for plaintiff in error. Leonard J. Tynan, of Newark, for defendant in error. PARKER, J. [1-3] The declaration followThe complainant's insinuation that he ed so closely the language of the declaration wanted to buy the Weber farm to "hitch" in the Supreme Court case of Kennedy v. it on the adjoining Scudder farm is refuted North Jersey Street Railway Co., 72 N. J. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Law, 19, 60 Atl. 40, that the judge of the a conclusion of law (and this is supported circuit court felt himself controlled by that by outside authority, 31 Cyc. 61; Brown v. decision, and the Supreme Court on writ of Coal Co., 124 Ky. 324, 99 S. W. 299), we are error concurred in that result. As in the of opinion that the alterations and additions Kennedy Case, the negligent act counted on in the present declaration are enough to upwas the sudden starting-or, more accurate- hold it as against a general demurrer. The ly, speeding up-of a slowly moving street rule is of course fundamental that the pleadcar as an intending passenger was in the act ing must state facts and not conclusions of of boarding it, and the critical point in the law. But equally fundamental is the rule declaration was the presence or absence of that things should be pleaded according to legally sufficient allegations of fact which if their legal effect. Stephen, Pl. (Tyler Ed.) true would give plaintiff a status as an in- 341. And this is not confined to deeds, contending passenger and thereby raise a duty tracts, etc., but extends to all matters or of care on the part of the defendant. To do transactions whatever which a party may this it was necessary to plead facts from have occasion to allege in pleading and in which it would appear that plaintiff was in- which the form is distinguishable from the vited, in the legal sense, to board the car. legal effect. Id. 342. Common instances of In the Kennedy Case the Supreme Court such pleading are the allegations that a parheld that the word "invited," in the declara- ty undertook and promised to pay (2 Chitty, tion, was used in its legal sense and stamped Pl. [7th Am. Ed.] 37 et seq.), that defendant the allegation as a conclusion of law rather converted plaintiff's property to his own use than a statement of fact, and consequently (Id. 837), that the plaintiff is the heir at law vitiated the pleading. In the case at bar the of A. (Id. 1330), that paintiff was ready plaintiff's attorney has endeavored to avoid and willing to perform (Id. 265), that plainthe vice thus pointed out, by substituting the tiff was in lawful possession of land (Id. 788), word "requested" for "invited," and stating that an indorser had notice of the dishonor that plaintiff had notified the servants of of negotiable paper (Id. 132), that plaintiff defendant operating the car to stop, and was seised in his demesne as of fee in lands that the car was slowed, etc., for the pur- and premises (Id. 865), that the defendant pose of permitting the plaintiff to board it. disseised the plaintiff thereof (Id.), and so on. The exact language follows: That All these are familiar clauses in the standard whereas on the day and year aforesaid the forms. Per contra, the pleading should not said car came nearly to a standstill at the state mere matters of evidence. The distincinstance and request of the said plaintiff, up- tion under code practice appears to be beon notice given by the said plaintiff to the tween what are known as ultimate facts, and said defendant, by its servants operating evidentiary facts. 31 Cyc. 70. Plainly it said car on said Broad street, and the said would have been improper to detail in this defendant by its servants then and there re- declaration the words of a colloquy between quested him the said plaintiff to board and the plaintiff and the conductor in which the enter said car to become a passenger in said conductor told him to get aboard and that he car to be safely and securely carried by the would be quite safe in doing so, etc. The said defendant, in the said car, upon and transaction had to be epitomized in some along said Broad street, for hire and reward way without pleading a legal conclusion; to be paid by the said plaintiff to the said and we consider that the use of the word "redefendant in that behalf; and the said plain- quested," especially with the additional statetiff avers that while he, the said plaintiff, ments that the car was slowed down upon was then and there lawfully attempting to notice, and that it was slowed down for the board and enter said car pursuant to said purpose of permitting plaintiff to enter, difrequest of the said defendant by its servants, ferentiates this declaration from that in the the said defendant having then and there Kennedy Case, and that it is good on general slackened and slowed down the speed of said demurrer. car almost to a standstill for the purpose of The word "request" and the word "notice" permitting the said plaintiff to board and en- are two of the commonest words used in recter said car safely, the said defendant by its ognized precedents. 2 Chitty, Pl. 387, 132, et servants then and there carelessly, negligent-passim. Both, in the language of the authorly, and improperly suddenly accelerated the ity just cited, set up ultimate facts as disspeed of said car, without then and there giving any notice or warning to the said plaintiff, thereby dragging and throwing the plaintiff violently to the ground and then and there seriously and painfully injuring him." The Kennedy Case was followed by the Supreme Court in Kubinak v. Lehigh Valley R. R. Co., 79 N. J. Law, 438, 75 Atl. 443, but does not appear to have been considered in this court. Accepting as correct for present purposes the ruling that the word "invited," tinct from evidentiary facts, and it cannot be successfully maintained that either was faulty as importing a conclusion of law. So we gather from this declaration (after the allegations, not questioned as to sufficiency that defendant was operating a street car, etc.) that plaintiff, desiring to become a passenger, gave notice to defendant's servants to stop the car; that they slowed the car almost to a standstill for the purpose of permitting plaintiff to board the car, and requested |