a reference to the Bentzen & Hill map. Hence the persons taking title from Bentzen & Hill had direct notice, by the map to which the deeds refer, that the grantors reserved a strip throughout the center of Cleveland avenue, and I am of the opinion that the effect of such notice is not overcome by their reference to the borough assessment map. The fact is that Bentzen & Hill thought, and justly, that, as they owned the greater portion of Cleveland avenue, the party which would have the benefit of the opening of that street should pay for so much of their land as lay north of the center of the street, and such claim, in my judgment, was just. The case, then, presents no elements from which an inference can be drawn that Bentzen & Hill have ever waived their reservation of the strip in question, and, on the proofs as shown, I must hold that the complainant, by any conveyance given by the defendant corporation, would not get the benefit of Cleveland avenue as a dedicated street west of Summit street, or, at least, that her right in that behalf is too doubtful to warrant this court in decreeing specific performance on the strength of its existence. I am further of the opinion that under the contract she was clearly entitled to have such benefit. The reference to the maps contained in the contract raised a clear implication that the streets marked on those maps were at least dedicated streets. This want of right to use Cleveland avenue as a dedicated street came to the knowledge of Mr. Cleveland before the time for finally performing the contract had elapsed (in fact, the time had been extended by the defendant corporation), and he demanded that such want of dedication should be remedied. The complainant, through her husband, paid $4,300 on account of the purchase, so that, up to a certain time, at least, her position was one of perfectly good faith. The defendants allege that she became disgusted with her purchase, and that the complaint in regard to the right of Bentzen & Hill to close Cleveland street was a mere excuse to enable her to get rid of carrying out the contract. There is some evidence to sustain that view. Mrs. Cleveland had no money of her own; her husband was to furnish the funds to make this purchase, and was undoubtedly disappointed in receiving moneys, and was short financially during the running of the contract. His business carried him away to Europe a good part of the time, and he became broken in health. Undoubtedly, in giving his evidence in London, he fell into some errors of fact, but I think they were innocent, and due to the circumstance that he had not the papers in the matter before him, and was embarrassed thereby in giving his evidence, and he did not have the benefit of being present at the hearing and correcting his errors, or of answering the evidence of the defendant. He clearly fell into an error as to the place where the contract of August

14, 1899, was executed by him, when he says that it was executed on board ship; he clearly confused that occasion with an occasion in the latter part of November, 1899, when he did hurriedly execute some papers on the eve of his leaving a second time for Europe.

The contract provided that complainant was to pay the interest on the mortgage from a certain time. The interest accrued and was unpaid before the arrival of the time upon which the complainant agreed to pay it, and foreclosure proceedings were commenced on a mortgage, and went to a sale. Besides this, the mother of Mr. Van Guilder, a Mrs. Fay, sued the corporation and got a judgment, levied on all the property included within the contract, and proceeded to sell the same. But the perfection of the sheriff's sale was arrested by an order of this court. Before she obtained her judgment the contract in question was recorded, so she took her judgment with notice of the complainant's equity. I have said that the mortgage was foreclosed, and the property sold under that. All of the lots were not covered by mortgage, but were covered by Mrs. Fay's levy, and the precise contest presented by the complainant is whether she shall have a lien for the amount of $4,300, the purchase money paid by her, on so many of the lots as were not covered by the mortgage.

But to return to the defense of want of good faith on complainant's part. In order to thoroughly understand the force of this point made by the defendant, it is necessary to consider the occurrences between the date of the contract of August 14, 1899, and the 1st of October, 1900. The purchase price was $17,000, to be divided between the land company and Mrs. Quackenbush, in the proportion of $12,000 to the land company and $5,000 to Mrs. Quackenbush, but the incumbrances on the several properties were not in that proportion. Of this $17,000, $2,000 was to be paid or provided for at the date of the contract, $3,000 more paid in cash within three months after the date, which would be the 14th of November, and the balance of $12,000 in six months, which would be the 14th of February, 1900. The first $2,000 were paid, but how it was divided between the land company and Mrs. Quackenbush does not appear. The complainant went to London the next day, August 15th, and returned in the course of two months, just when does not appear. Between that and November 28, 1899, he paid the land company enough money, in addition to the previous payment, to make it up to $4,300, and took the receipt of its president for that amount. Whether that receipt included the whole of the $2,000 paid on the 14th of August does not appear, but the presumption is that it did not, but that Mrs. Quackenbush had a share of that first payment. Then about that time Mr. Cleveland made provision by which Mrs. Quackenbush was entire

ly paid, the last payment being a little less than $200, and she conveyed her whole interest to the defendant; but out of her payment was taken, of course, the mortgages on her premises-just how much those were does not appear. Those mortgages were afterwards foreclosed, and the lots which Mrs. Quackenbush agreed to convey were sold and purchased by other parties. It would seem then that the $4,300 which the land company acknowledged to have received up to November 28, 1899, would include all its share, as against Mrs. Quackenbush, of the first two payments of $2,000 and $3,000 each provided for in the contract. The next payment due to the land company would be on the 15th of February, 1900, when the conveyance was to be made. Mr. Van Guilder was anxious to realize on such payment in advance of the time fixed for the delivery of the deed, and an arrangement was made on or about the 28th of November, quite hurriedly, just as Mr. Cleveland was about to sail for England, between Van Guilder and Cleveland, by which Cleveland agreed to accept the title at once and give back a mortgage to secure so much money as would be coming to the land company over and above the mortgages and other incumbrances on the lots which the defendant agreed to convey. For this purpose the amounts of the several liens were collected, and a statement of the total was made up. A mortgage was executed by Mr. Cleveland covering all the lots to Mrs. Van Guilder, with the amount to be secured in blank, and left by him with Mr. Winans, who was the conveyancing counsel for both parties, and had been the standing counsel for the land company. Mr. Cleveland took a statement, showing the incumbrances and payments, and the balance of cash that would be due the land company, on board ship with him for his second trip to London on business, with the understanding that he should examine the statement at his leisure on the voyage, and, when he had arrived in London and was satisfied of the accuracy of it, he was to write a letter instructing Mr. Winans to have his wife join in the mortgage, with the proper amount inserted, and deliver it and accept the conveyance. The time for the payment of that mortgage was the 30th of September, 1900. The effect of this arrangement, if it had been carried out, would have been that the land company would obtain a mortgage for the balance due it nearly three months sooner than it would receive the cash by the terms of the contract, and the complainant would have obtained time until the 1st of September to pay that balance. In the meantime, the understanding was that Mr. Winans was to look at the incumbrances, and satisfy himself, in the complainant's interest, that it was safe for her to take the title and deliver the mortgage. Mr. Winans did look into the matter, and on the 15th of December, 1899, wrote Mr. Cleveland a long letter, giving the

result of his examination, and advising him not to close the transaction in the present condition of the title and incumbrances; and the arrangement accordingly fell through. In the meantime, however, the land company obtained present pecuniary relief by putting mortgages on the premises, and thus anticipating payment. Mr. Cleveland returned from England, just when does not appear, and spent the summer of 1900 in and about New York, and in fact made his home with the complainant at Hasbrouck Heights. During this period he began to look about with a view of improving the property, and, among other things, of building a house which would occupy several of the lots. This led him to inquire into the matter of the final dedication and acceptance of the various streets, which existed only on paper, and he then discovered that Cleveland avenue had not been dedicated by the owners of the principal part of the bed of the street. He brought forward this objection to Mr. Van Guilder, and it became a subject of contention between them. At Mr. Van Guilder's request he attempted to negotiate with Bentzen & Hill for proper proceedings on their part to dedicate the street. They offered to do so for $600. Mr. Cleveland reported the offer to Mr. Van Guilder, who declined to pay it-said he would compel the borough to open the street. This the borough declined to do.

A further subject of contention arose between them as to the exact number of lots to be conveyed, and the fact that some of those which were mentioned in the contract could not be conveyed. In September, 1900, Mr. Van Guilder was pressing for closing the affair, and Mr. Cleveland finally suggested that he prepare his deed and let him see what he proposed to convey. Mr. Winans declares expressly that Cleveland told him that he (Winans), who was the conveyancer, might prepare the deed, so that he (Cleveland) could see what he would get by it. With regard to the time when the objection of the nondedication of Cleveland avenue arose, Mr. Winans says it was some time before the preparation of this deed. A deed was accordingly prepared and tendered to Mr. Cleveland, first on the 30th of September, and again on the 10th of October, and declined by him on various grounds, the principal of which was that Cleveland avenue was not dedicated. There was also contention as to the lots which were included in it, and, strange to say, this deed was not produced by the defendants, nor were any of the letters which Mr. Cleveland swears that he wrote Van Guilder from time to time, containing his objections to the title proposed to be made. There is no doubt, as before observed, that Mr. Cleveland was short of money at times during the summer of 1900, but I am unable to find that the objection to the lack of dedication of Cleveland avenue was a mere excuse to get rid of the contract. The ob

jection was and is a serious one; it affects the value of a large number of the lots which he agreed to purchase, and I am unable to conclude that it was not made in good faith. Now, upon these facts, the first question is: Could the defendant at any time have compelled the complainant to specifically perform the contract by accepting the conveyance of the premises and paying therefor? I think there can be but one answer to that question. The court would not compel the complainant to accept the title and pay therefor, and that disposes of the defendants' cross-bill, which prays specific performance. No offer was made at any time before suit commenced, nor was any made by the defendants' cross-bill or at the hearing, to apply to the matter of those lots fronting on Cleveland avenue a clause in the contract which provides that, in case either party shall fail or be unable to convey a good title to any lot or lots, then the amount of the consideration to be paid for said premises shall abate in proportion to the value that said portion shall compare to the whole property, and the contract shall not be deemed to be an entire contract, but severable for that purpose only. And I am of the opinion that such clause does not apply to the defect set up.

If, then, the land company could not in equity compel the complainant to complete the contract, does it not follow that the complainant may have relief for the money which she has already paid? And this seems to follow naturally from the other proposition, unless the complainant is for some reason estopped by reason of the defendants' having changed their position irretrievably. I find nothing of that kind in the case, except the foreclosure of the mortgages by reason of the complainant failing to pay the same according to her contract; but, if the complainant was never under any equitable obligation to pay the mortgages, her failure to do so cannot be set up as an estoppel by the defendant. It appears from the evidence of Mr. Cleveland, and that of Mr. Winans, that he gave notice to the defendant as soon as he discovered this defect, and the defendant should have protected itself in the matter of the payment of these mortgages. No evidence was given on the subject, but it is not at all unlikely that the property was bought in at foreclosure, so far as it was worth it, in the interest of the defendant.

The authorities on this interesting subject are quite in point. Professor Pomeroy, 3 Pomeroy's Equity Jur. § 1263, is clear and explicit, and the authorities he cites are quite in point. I refer especially to the case of Rose v. Watson, decided by the House of Lords on the 17th of March, 1864, reported in 10 House of Lords Cases, 672. The case is singularly like the one under consideration. There a gentleman by the name of Potter was seised of land in the county of Chester, and contracted to sell a portion of

it to Watson for the considerable sum of £8,295, payable in installments, with interest. He also sold other portions to a man by the name of Dobbs in like manner, and Watson purchased that contract from Dobbs. After this sale Potter mortgaged the whole to the complainant, a life assurance society, for £40,000, and notice of the mortgage was given to the Watsons by the society. Potter, the owner, went into insolvency, and assignees of his estate were appointed. Watson also gave notice to the society of his contract to purchase, and that he had bought Dobbs' contract, and "that the said several contracts had been entered into with Potter upon a representation by the agent of Potter that a plan produced by him, and which contemplated the laying out of the whole of the estate, and the building of a church in the center, immediately contiguous to the lots so purchased, should be carried into execution; that this had not been done, and thereby the value of the land had been materially affected; and that the Watsons were entitled to treat the agreement as void on account of such unfulfilled representations; and they claimed to have a conveyance of the land they had purchased from Dobbs, in satisfaction pro tanto of the purchase money they had paid him." This claim was denied, and the assignees in bankruptcy filed a bill against the Watsons for specific performance of the two contracts--that of Watson and that of Dobbs. It was heard before Lord Cranworth as vice chancellor, who, on the ground of the representations, which he deemed material in the matter of the contract, dismissed the bill. 1 Simmons, N. S. 523. That report shows that the two contracts were there, as here, entered into on the strength of a map, exhibited by the vendor to the vendees at and before the signing of the contracts, showing the whole tract, of which the pieces conveyed by the contracts were a part, laid out into streets and squares, which were to constitute an addition to or suburb of the city of Birkenhead, and that the vendor promised the vendees verbally that he would proceed at his own expense to open and improve the streets and make other improvements, which he had not done. This suit was followed by a foreclosure of the mortgage of the assurance society, represented by Sir George Rose, the trustee, and therein the defendant Watson set up a prior lien for the sum of £1,575, which he had paid on account of the contracts. That cause was heard before Vice Chancellor Kindersley, who pronounced a decree in favor of Watson and against the mortgagee and assignee in bankruptcy, giving him (Watson) a first lien on the premises for the amount of money he had advanced. That case came on for hearing before the House of Lords, composed of Lord Westbury and Lord Cranworth, and they affirmed the decree below.

Another case is Turner v. Marriott, L. R. 3 Equity Cases, p. 744 (1866). Still another

is Aberaman Iron Works v. Wiggins, L. R. 4 Ch. App. (1869) p. 101. There a Mr. Bailey was the owner of the Aberaman estate in Wales, on which were iron works and colliery, which he agreed to sell-estate, plant, and business-to Wiggins for £250,000, representing that the estate contained 1,530 acres. Wiggins organized a corporation called the "Aberaman Iron Works" to take the estate and work it, and entered into a contract with the corporation to convey the title to it. He was to receive £350,000, payable in installments, etc., and he represented the estate to the corporation as containing 1,530 acres. In point of fact, it only contained between 1,100 and 1,200 acres. After receiving £75,000 in cash and a batch of bonds from the company, the latter had a survey made and discovered the deficiency, and called on Wiggins for reparation. Wiggins then sued Bailey, the original owner, and his vendor, for damages for misrepresentation of acreage, and settled with him for the sum of £50,000, part in cash and part in bills of exchange on time. The company went into the hands of an official liquidator. The official liquidator brought this suit against Wiggins, and certain other persons interested with him in the transaction, to be relieved from its contract on the ground of the deficiency in the amount of the land, and to recover from Wiggins the amount advanced to him on its contract with him, and for a lien on the bills of exchange still held by Wiggins as part of the consideration received by him in his settlement with Bailey. The defense was there set up that the real reason why the company did not take the property was that it had not the money. It was set up there, as here, that the land consisted in the works, plant, and the mines already opened to the view, and that the lack of acreage was of no consequence, and was put forward as a mere excuse. Lord Cairnes, who heard the case, said (page 107): "The argument that the company would have bought the estate with equal readiness had they known it to consist of less than 1,100 acres, and that their real reason for rescinding was want of money to complete, appears to me hardly to require an answer. If the deficiency is one which entitles them to rescind (and no one disputes that it is), they are entitled to rescind, even although they might have been willing to pay an equal sum for the smaller quantity, and even although rescission may, in a financial point of view, have been convenient to them." And it was held that the corporation was entitled to rescind, and could recover from Wiggins and his associates. And a lien was given the complainant on the unpaid bills of Bailey received by Wiggins in settlement of Wiggins' claim against him.

Another instructive case is Torrance v. Bolton, L. R. Equity Cases, vol. 14, 1872. There a property was sold at auction, and the particulars of sale were read by the auction

COLLINS v. TOPPIN. (Court of Chancery of New Jersey. May 18, 1903.)

INSANE PERSONS-CONVEYANCES-CAPACITY TO MAKE-EVIDENCE-SUFFICIENCY.

1. In a suit to set aside a deed made without consideration by complainant to one occupying confidential and intimate relations towards her, evidence examined, and held to show that complainant, at the time she made the deed, did not have sufficient mental capacity to know and judge of those things which enter into a proper disposition of property.

Bill to set aside a deed, by Mary Collins, by John Kenny, her next friend and brother, against Annie Toppin. Decree setting aside conveyance.

Charles L. Corbin, for complainant. George T. Werts, for defendant.

PITNEY, V. C. The bill is filed for Mary Collins, a complete and incurable lunatic, by her brother, John Kenny, her next friend, against Annie Toppin. The complainant and defendant are residents of Jersey City. The cause, in its primary stage, has previously been before the court, as reported in 51 Atl. 933, and 63 N. J. Eq. 381.

The bill states that the complainant is the widow of Martin Collins, deceased, of Jersey City, who died on the 11th of October, 1900, at which time the complainant was seised jointly with her husband of certain valuable real estate in Jersey City, consisting of a large flathouse, known as the "Florida Flats," worth about $80,000, and subject to a mortgage of $45,000, and with a rental value of $8,000 or upwards, and which, after paying the current charges of interest, insurance, and repairs, produced a comfortable income, and of which by the death of her husband she became seised in fee simple; that the complainant became insane, and was confined, at the instance of her husband, in the State Hospital at Morris Plains in the latter part of July, 1899, and that after several months she was taken from the hospital at the request of her husband, and that she was afterwards again, in the latter part of September, 1900, committed to the insane asylum as insane; that she has no children; that in December, 1900, her brother applied to the court of chancery to have the complainant adjudged a lunatic,

in order that a guardian might be appointed of her estate; that an inquest was taken, and that although the physician in charge of the hospital and her family physician, Dr. McGill, and others, testified to her insanity, yet that two other physicians, officeholders in the county of Hudson, had testified to the contrary, and the jury found her to be of sound mind, and she was released from the asylum the latter part of January, 1901, and went to live with the defendant, Annie Toppin, and her sister Lottie Toppin, at their house, in Jersey City; that in the summer of 1901 she was sent by persons unknown to the complainant or her brother to the Hudson County Lunatic Asylum for paupers, under the charge of Dr. King (one of the witnesses who had testified at the inquest in the previous January that she was sane), and that up to the filing of the bill she had remained in the county hospital for paupers, under the charge of Dr. King, without the comforts and care to which she is entitled, and which could be secured by the proper use for her benefit of her estate; that the defendant, Annie Toppin, with whom the complainant was living in the summer of 1901, claims to be the owner of all of the real estate of which the complainant became the owner by the death of her husband, and that one Robert Davis, of Jersey City, claims to own all her personal property under an assignment; that there appears of record, in the office of the register of Hudson county, a deed purporting to be made by the complainant to Annie Toppin, dated June 4, 1901, recorded June 11, 1901, whereby, in consideration of $1, complainant conveys to the defendant, Annie Toppin, in fee simple, all the lands above mentioned. The bill then alleges. "At the time of the making of said deed your oratrix was not competent to make the same, nor has she been competent at any time since, and the same was fraudulently procured from her, and is without consideration and null and void.", The prayer is that the deed be set aside, and that the defendant may be decreed to account for and pay over to the complainant the rents and profits that she has received.

The defendant, by her answer, admits the ownership of the premises by the complainant, but denies that the complainant was at any time insane, or that she was committed to the State Hospital because of her insanity; and she says that any confinement that the complainant has undergone in the State Hospital was voluntary on her part, and for the sole purpose of enabling her to be treated for, and recuperate and recover from the effects of, her indulgence in intoxicating liquors and other stimulants, to which she was at times addicted. She further admits the lunacy proceedings and the finding of the inquisition, and alleges that the finding of the inquisition is conclusive, and denies again that the complain

ant was at any time a lunatic, and alleges that at the time of the making and delivery of the deed to the defendant the complainant was in full possession of her faculties, and capable and competent to transact any and all business, and that if the complainant became insane afterward, which the defendant denies, such insanity must be from a very recent date. She admits that the complainant lived at the house of the defendant and her sister during the time stated in the bill, but that it was a mere natural continuation of a previous intimacy and great attachment existing between the parties, and alleges that the complainant has been for a long time, and still is, estranged from her brother and next friend, and had declined to have any communication or relations with him. She denies that in the summer or fall of 1901 the complainant was sent or committed to or confined in the Hudson County Asylum, or that she was at any time in the insane ward of said asylum, and without the comforts and care to which she was entitled. But she alleges that complainant was a friend of Dr. King, who was aware of her disposition to use liquors and stimulants, and endeavored to overcome the same, and that for that purpose in September, 1901, she voluntarily placed herself for a short time under the charge of Dr. King at his private residence or quarters at said Hudson County Asylum, and while there had her freedom, her own private room, attendants, and all proper care and attention. The answer further says that the complainant was not at the date of the filing of the bill. nor has she since been, at the said Hudson County Asylum, or at the residence or quarters of said Dr. King, but does not state where she was at the time of filing the bill or the filing of the answer. The defendant admits that she holds the deed in question, but knows nothing about the assignment by the complainant to Robert Davis. She explicitly denies that at the time of the mak ing of the deed complainant was in any wise incompetent to make the same, or that it was fraudulently procured from her, or that it was without sufficient consideration. She says at the time of the making of it complainant was in all respects competent to make and execute the same, and that she understood and comprehended the nature of the transaction, and freely and voluntarily made, executed, and delivered the deed, without any fraud practiced on her by the defendant or any other person in her behalf, and entirely without restraint or influence by the defendant or anybody else. The answer does not state any consideration for the deed, nor does it hint at or declare any trust upon which it was held by the defendant.

The proofs show, or tend to show, the following facts:

The complainant and her brother, the next of kin, were the children of respectable Irish