of the facts that he alleges, or received immediate information concerning them. He made no move of any sort against his wife until he brought this suit in 1909. During all of the periods from 1904 to 1909, and from 1906 to 1909, he was possessed of all the proof that he now produces against his wife; and during all of that time he did not use the proof in any way to either bring a suit himself or to oppose her suit by a counter suit in New York to rid himself of the payment of $5 a week alimony, which he was paying under the New York suit.

With respect to each of the charges just dealt with, the wife does all that, under the circumstances, it seems possible for her to do, namely, denies them. At the time of the bringing of the suit, the earliest of these charges was five years old, and the others were three years old. The whole gist of the petitioner's evidence is that

"on a certain day five years ago you, the defendant, went to a certain place with a man that we cannot identify; and similarly went on two other occasions three years ago."

Since the man is not identified in any way, there is no burden on the defendant to produce any testimony from the alleged corespondents concerning the incidents.

After the great length of time which ensued between the alleged offences and the beginning of the suit, it would only be by fortuitous chance that the defendant could account for her actions upon the days upon which each of the alleged offences is stated to have taken place.

If it were ever proper to grant a decree of divorce upon a finding of adultery where the only proof on behalf of the petitioner is that his witnesses saw the defendant, the wife, and a man unidentified, go into a hotel and not come out until morning, the accusation should follow so soon after the charge as to enable the wife to fairly meet it; or the petitioner runs the risk of having the court find, as I do in this case, that his testimony is incredible. It is upon this basis that I refused to find a proven offence against the defendant with respect to the three charges first above mentioned. I cannot believe, and do not believe, that if a husband, situated as this petitioner was, separated from his

wife, paying her alimony in a marital action pending in the court, detected his wife, while he had with him corroborating witnesses, entering into hotels and spending the night there with strange men, that he would wait, in one instance, five years, and in the other instance three years, before taking some affirmative action based upon the proofs thus in his possession. That he has not taken such action leads me to find that the testimony of the witnesses is incredible and I do not believe it.

His attempted explanation is that it took all the money that he had to pay the alimony, and therefore he had no money to prosecute a suit. This is too trifling to receive more than passing attention. He had counsel in New York in the very suit in which he was paying the alimony. He had separated from his wife by agreement, and does not pretend to have any affection for her or any desire ever to resume relations with her. He employed detectives for the express purpose of detecting her in wrong-doing. The detective, with a recklessness that casts doubt upon his entire testimony, testifies that this woman was a common solicitor of men upon the street, and furnishes corroborating testimony of the woman going to hotels with strange men. Yet the husband would have the court believe, under all these circumstances, that he obtained, at the times named, the evidence now produced. My mind is unable to reconcile such conduct with the ordinary behavior of the average person. He had every reason to wish to get rid of his wife, and to wish to be rid of the obligation of supporting her; and if he had the evidence in his possession which he now produces, it is inconceivable that he did not use it. The only conclusion that I can reach which squares itself with all the facts, is that he did not then have the evidence, and that the testimony produced before me is not worthy of belief.

It will be noted that he refers to some advice given him by his New York counsel; it would have been a very easy matter for him to have produced this counsel to state the reason, if there was any, why he did not act on behalf of this petitioner and utilize, in the New York suit, by way of defence or counter suit, the testimony which was gathered under his direction. He did not produce this attorney, nor show any reason why he did not.

This disposes of the first three charges.

The last charge, and the only one in which any co-respondent is named, is with respect to conduct with one Novagewsky. Apparently, without any justifiable reason for so doing, the petitioner attributed the name of Reed to this alleged co-respondent. The proofs show that the defendant took Novagewsky and a friend of his to board with her; that these two young men occupied a bedroom in her house, or apartment, for a period of about six months, beginning in October, 1906, and extending to the spring of 1907; that during all of that period they, each of them, lived there with her as a boarder, and paid her $10 a week for their board and lodging.

There is no proof of any improper conduct of any sort between the defendant and Novagewsky. Unless the court is going to hold, as a bald proposition, that a married woman, living away from her husband, must not have male boarders, there are no facts proven in this case which should properly lead the court to find this defendant guilty of adultery with Novagewsky.

Novagewsky himself was a witness. The other young man could not be produced, because he had gone back to Germany, and was still there at the time of the hearing, so far as the defendant knew. Novagewsky was a clean-cut, well spoken young man, of nice appearance, who gave his testimony in a manner to induce belief. He ceased to board with the defendant shortly before he was married. He is a resident of New York, and his attendance in New Jersey was therefore voluntary; and I do not find any facts which should cause me to disbelieve his testimony.

The result is that the petition should be dismissed.

Equity will not decree the specific performance of a contract for the sale of land and a building thereon, where the vendor has no paper title to a portion of the property, and he attempts to show title by adverse possession on evidence of a prior owner of the land when vacant that he erected the building by mistake over his land, and had no intention to encroach on land over the line, and the land, in this condition, came through mesne conveyances to the vendor.

Heard on bill, answer, replication and proofs in open court.

Mr. Marshall W. Van Winkle, for the complainants.

Messrs. Tumulty & Cutley, for the defendant.

GARRISON, V. C.

This is a bill filed by a vendor against a vendee to compel the specific performance of a contract for the sale of real estate. The property in question is No. 140 Cornelison avenue, in the city of Jersey City. There is but a single question presented. It is admitted by all parties that the building just mentioned, and which it was the intention of the parties to sell, as it now stands, covers more land than that to which the complainant has paper title, and encroaches several inches upon the adjacent land to the north, which is in a different ownership. The complainant seeks to remedy this defect, and to show title in herself, by alleging and proving adverse possession.

She produces a witness named Spengeman, who owned this land when it was vacant, and who, about 1882, erected the building as it now stands. He testified that he had procured a survey to be made and located his building upon the lines of his lot as

indicated by the surveyor. He had no intention nor desire to encroach upon his neighbor's land, and did not assert the right to do so, and did not intentionally do so, although it is the fact that he did.

About 1888 he sold the property to the Mutual Benefit Life Insurance Company of Newark, who owned it for many years, and thence it passed into the ownership of the complainants.

The sole question in this case is whether, under the circumstances, the court will force this title upon the defendant.

In my view, it would not be a proper exercise of the discretion which resides in the court in specific performance cases to require this defendant to take this title. Where the validity or marketability of a title depends upon facts outside of public records, the court should not force the title upon a defendant unless the necessary proofs are available to him when he may have future need of them. Authority for and illustration of this principle will be found in the following cases: Meyer v. Madreperla (Court of Errors and Appeals, 1902), 68 N. J. Law (39 Vr.) 258; Dobbs v. Norcross (Chancellor Runyon, 1874), 24 N. J. Eq. (9 C. E. Gr.) 827; Tillotson v. Gesner (Court of Errors and Appeals, 1880), 33 N. J. Eq. (6 Stew.) 313; Cornell v. Andrews (Chancellor Runyon, 1882), 35 N. J. Eq. (8 Stew.) 7; Lippincott v. Wikoff (Vice-Chancellor Emery, 1895), 54 N. J. Eq. (9 Dick.) 107; Rutherford Land Co. v. Sanntrock (Vice-Chancellor Pitney, 1899), 44 Atl. Rep. 938; affirmed, 60 N. J. Eq. (15 Dick.) 471 (Court of Errors and Appeals, 1900); Fahy v. Cavanagh (Vice-Chancellor Pitney. 1900), 59 N. J. Eq. (14 Dick.) 278; Barger v. Gery (Vice-Chancellor Stevenson, 1902), 64 N. J. Eq. (19 Dick.) 263; M. E. Church v. Roberson (Vice-Chancellor Bergen, 1904), 68 N. J. Eq. (2 Robb.) 431; Zelman v. Kaufherr (Vice-Chancellor Stevens, 1909), 76 N. J. Eq. (6 Buch.) 52; Deseumeur v. Rondel (Vice-Chancellor Garrison, 1909), 76 N. J. Eq. (6 Buch.) 394.

In the case at bar the facts outside the records which are necessary to be proven to make the title good, with respect to that part of the building which encroaches, are those to support a finding of adverse possession in the complainants and their predecessors in title.