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the decision upon that ground, then proceeds as follows: "The law of this state deprives this court of jurisdiction unless the petitioner shall make oath, to be annexed to the petition, that her complaint is not made by any collusion between her and the defendant for the purpose of dissolving their marriage, and it necessarily follows, that if at any time during the procedure it shall appear that the jurisdictional condition is not present, the petition should be dismissed." In Pohlman v. Pohlman, 60 N. J. Eq. (15 Dick.) 28, the vice-chancellor held "that the desire of a defendant to be divorced, and her voluntary appearance in a court where she is not obliged to appear in order that the decree may be valid in a foreign jurisdiction, does not amount to collusion, but the facts offered for consideration in the case just cited differ in a very marked degree from those appearing in this case. Collusion in cases of this class is not only a corrupt agreement between the parties whereby one shall commit the matrimonial offence, or under the terms of which evidence of an offence committed is fabricated, but also includes any agreement whereby evidence of a valid defence is suppressed, and, in my judgment, such an agreement, if not expressed, may be implied from the acts of the parties." He then goes on to show that public policy is always involved in divorce suits, and he finds. that the defendant appealed to the petitioner to bring a suit for divorce and agreed that if she would do so he would give her a lump sum of money provided she obtained a divorce. And after discussing this, he says: "If arrangements between parties providing for the institution of divorce suits, in consideration of a large sum of money, are to receive the sanction of this court, every legal restriction against the voluntary dissolution of the marriage tie can readily be avoided by designing and unprincipled parties." He therefore finds that there was collusion, and dismissed the suit.

In some of the authorities above cited it will be found that the court, upon being satisfied that the defendant and complainant had agreed that the suit should be brought, had dismissed the suit without prejudice to the right to bring another one not the result of such collusion.

My own view of the situation, briefly stated, is this: The policy

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of our law favors marriage, and disfavors divorce. Parties may not be permitted to make agreements with respect to divorce suits which would be perfectly proper to be made in other li tigations. In divorce suits public policy requires that certain agreements shall not be made between the parties and when such interdicted agreements are made they are termed "collusive."

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What is termed "collusion" in divorce suits is a definite kind of agreement of parties concerning the divorce. If collusion is to be limited (as some of the definitions would limit it) to “a corrupt bargain to impose a case upon the court," that is, either by the suppression of evidence or by the manufacture thereof, then, each case where there was an agreement between parties would have to be investigated to see whether such an agreement came within the interdiction of the definition of lusion. But if collusion is given an ampler definition, so as to include any agreement between the parties as a result of which no defence shall be made, then the case will not be investigated after the ascertainment that there is such an agreement, because that agreement itself would be within the definition of collusion and would defeat the suit.

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I cannot escape the conviction that our statute which requires an affidavit by the petitioner that "the said petition is not made by reason of any collusion" indicates that with us "collusion" must be given the broader and ampler definition. It seems to me to be perfectly clear that if a man and wife agree that one of them shall bring a suit for divorce against the other, and that no defence shall be made, such an agreement should be included in the definition of collusion. And it also seems clear to me that when they have thus agreed the party making the petition certainly makes it by collusion.

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This definition, of course, would not include cases in which the defendant was willing the suit should be brought or even anxious or desirous that it should be brought, but would include cases where the defendant and the petitioner agreed that it should be brought and that no defence shall be made, a fortiori, where he not only agrees that it should be brought and be undefended, but advances money to induce its bringing.

My reason for thinking that the definition should be the

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broader one is that it would then be clearly and consistently in keeping with the public policy which we maintain in this respect. Because, if we limit the term "collusion" to the narrow definition (which only includes the suppression of evidence or the manufacture thereof), and permit agreements that suits shall be brought in which no defence shall be made, we are creating by such permission a situation in which the chances of our ever finding out the truth concerning the matter are almost zero.

If parties agree that one of them shall bring a suit and the other will not defend, it is impossible to escape the conviction that the court will have practically no opportunity to ascertain whether evidence is suppressed, or manufactured evidence is offered. I do not wish to be understood as including within the definition of collusion agreements by which the husband contracts to pay a certain amount of alimony to his wife without the intervention of the court. I do think, however, that within the definition of collusion should be those cases in which the husband agrees with the wife that he will furnish a sum of money with which she is to procure a divorce against him.

I think that what has been done in some courts should be done in such cases; that is, where the court is convinced that there is not manufactured testimony or suppressed evidence, but that the suit is collusive because of the agreement, the suit should be dismissed without prejudice to the right to bring another suit which shall not be collusive.

I am clearly of opinion that if it be held that an agreement between husband and wife that suit shall be brought and no defence entered is within the definition of collusion, the court should infer such an agreement from the fact that the husband has, before the suit was begun, advanced money to the wife, or to a lawyer for the wife, for the purpose of bringing the suit.

As is pointed out by Chancellor McGill, Vice-Chancellor Bergen and other judges, it is a shallow pretence that there is any intention to defend if the defendant furnishes money for the prosecution of the suit. And it certainly is not a violent inference for the court to find an agreement in consonance with the defendant's act in furnishing the money to enable a suit to be brought against him.

Ring v. New Auditorium Pier Co.

77 Eq.

The result is that the petition in this case will be dismissed without prejudice to the right of the petitioner to bring any suit free from collusion.

CONSTANT Q. RING

V.

NEW AUDITORIUM PIER COMPANY et al.

[Decided September 9th, 1910.]

1. While cestuis que trustent are what are termed "necessary" parties to suits to foreclose a trust deed, failure to make them parties does not invalidate the foreclosure decree, so that the holder of corporate bonds was not entitled to have a decree foreclosing a trust deed on corporate property set aside because he was not a party to the proceedings, especially where it was not shown that any property subject to the lien was omitted from the foreclosure, or that his interest was not fully protected; the utmost which he could claim being that the foreclosure did not affect his rights.

2. A party defendant to a mortgage foreclosure is not, as a matter of law, entitled to notice of the time and place of the sale; he being required to use diligence to ascertain such facts.

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3. Even if a holder of corporate bonds was entitled to have a decree foreclosing a trust deed on corporate property set aside, because he was not a party to the proceedings, he was not entitled to such relief, where it appeared that he was advised before the sale by the trustee that the latter had been requested to foreclose, thus notifying him that a closure was probable, and was afterwards notified that the sale had taken place, the amount realized, and his part thereof, but did not attempt for many months thereafter to have the foreclosure decree set aside, during which interval it had become impossible to restore the status existing before the sale because of the leasehold interest, upon which the mort gage was, having expired shortly after the sale, and new leases to other parties having been made, and various stocks and bonds having been issued and new corporations formed to purchase the mortgaged property,

and to guarantee the new bonds.

4. A bondholder of a corporation was entitled to be made defendant to a suit to foreclose mortgages on corporate property.

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5. Where, though a corporate bondholder was given an opportunity to enter into an arrangement with the other bondholders. for the purpose of

7 Buch.

Ring v. New Auditorium Pier Co.

selling mortgaged corporate property under foreclosure, buying it in, and accepting proportionate shares in a new mortgage of the same property, knowledge of the pendency of the suit was concealed from him by the trustee and other parties interested, and he was not notified thereof until after the sale, such bondholder was entitled to share in the new security created under such arrangement to the same extent as the other bondholders who were notified of the foreclosure proceeding and made defendants therein, upon paying his proportionate share of the expense of the scheme to substitute the securities.

6. The fact that such bondholder did not institute suit for such relief for many months after the foreclosure sale will not bar his right to relief. where no one has in the meantime changed his position, and no rights of others have been affected by his delay.

7. The chancery court has complete jurisdiction with respect to trusts. 8. The chancery court has complete jurisdiction to relieve from fraud in proper cases.

9. If other corporate bondholders and the trustee under corporate mortgages fraudulently conspired together to defraud another bondholder of his rights under the mortgage, by having it foreclosed without notice to to him, and without making him a party to the foreclosure proceedings under a scheme to buy in the property at the foreclosure sale and to create a new security and issue new bonds, such bondholder will be entitled to equitable relief to protect his right in the new securities created.

Heard on bill, answers, replications and proofs in open court.

This is a bill filed by Constant Q. Ring against the New Auditorium Pier Company, the Pier Corporation of New Jersey, the Pier Company of New York, William H. Brearley, who was trustee under certain mortgages, Everett P. Hervey and George C. Tilyou.

Constant Q. Ring was a bondholder of the New Auditorium Pier Company, Brearley being trustee of the mortgage. The mortgage was foreclosed and Ring was not made a party to the suit. The property was bought in at the foreclosure sale (of which Ring had no notice) by the Pier Corporation of New York, a corporation whose whole capital stock is owned by the Pier Corporation of New Jersey. This last-named corporation was formed by or on behalf of all the other bondholders of the New Auditorium Pier Company, the agreement among them being that they should get bonds of the Pier Corporation of New Jersey, guaranteed by a New York corporation called the

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