letter, that she was willing to release in case he should take judicial proceedings to compel specific performance of the contract. It is proved that on the very day on which, under the contract as extended, the deed was to be delivered, her attorney stated to the attorney of Reddish and Ohlen that she was willing to release upon such a payment as would secure her rights, by which was meant payment to her husband’s administrator, and not to David L. Miller.

A valid and binding contract of sale such as a court of equity will specifically enforce against an unwilling purchaser operates as a conversion. The cases in which the court has refused to decree that a contract for sale works equitable conversion are those in which the contract was such as equity would not enforce.

The counsel for the answering defendant insists that the decision in the case of Teneick v. Flagg, 29 N. J. Law, 25, is decisive of the question under consideration, and is adverse to the claim of the complainants. But it is to be observed that that was an action at law. Mrs. Attie Teneick had agreed to convey land to James Buckalew, and had received part of the purchase money. He refused to accept the deed because of the pendency of an action of ejectment brought against Mrs. Teneick by other parties to obtain possession of the land. She delivered a deed for the property to her agent. to be delivered by him to Buckalew upon the- favorable termination of the action of ejectment. She died before the termina~ tion was reached. By her death the action of ejectment abated, and it was not renewed. After her death her heirs conveyed the property to Buckalew in pursuance of her agreement, and the purchase money was paid to her administrators. The husband of one of the heirs brought suit against the administrators to recover a share of the money. The court held that he was entitled to recover, on the ground that on the death of Mrs. Teneick the title descended to her heirs; the deed held in escrow pasting no title, since the event on which it was to be delivered to Buckalew did not happen in the life-time of the grantor, and at her death the deed ceased to have any validity. In the decision of the case the difference between the equitable rule and the legal rule was distinctly recognized by Justice HAINEs in his opinion. The cause was, of course, decided in the court of law upon the legal rule.

Upon a full and careful consideration of the matter I reached the conclusion in the suit for specific performance that the contract worked a conversion. See Miller’s Adm’rv. Miller, at supra. The only new feature now presented is the fact that the appellate court has decided that specific performance ought not to have been decreed. The reason for that conclusion has already been stated. It was not the invalidity of the contract, nor any Consideration which rendered the contract unenforceable in equity at the death of John B.- Miller, or at the time fixed by the contract for completing the purchase. The contract was one which, at the time fixed by it for completing the purchase, could have been enforced against the purchaser in equity, and it would have been enforced at that time on the application of the heir, with the consent of the widow, and she was willing to join him in enforcing it if he had been willing to secure to her her right in the purchase money. In equity he ought to have enforced it. Equity regards that as done which ought to have been done. The doctrine of conversion is a reasonable one. In this case, John B. Miller had made a sale of the property, which, had he lived, he would have been able to enforce in equity, and which it is to be presumed he would have enforced. He had sold the property at a high price. It should not be, and it is not, in the power of the heir to defeat the right of the next of kin by his own unwillingness to carry out the contract. By force of the contract the vendor became in equity trustee of the property for thevendee, and the latter became trustee of the purchase money for the former. It has been held that the equitable rights of the next of kin of the vendor are not defeated, where the vendee, by his laches, after the death of the vendor, loses his right to specific performance, provided the contract was enforceable in equity at the death of the vendor. Curre v. Bowyer, reported in a note to Farrar v. Earl of Winterton, 5 Beav. 1 \Vhere there is a contract for the sale of an estate, the estate is in equity considered as converted into personalty from the time of the contract, although the purchaser has an election to purchase or not as he shall see fit. Lawes v. Bennet, 1 N. J. Law, 167; Sugd. Vend. & Pur. (8th Amer. Ed.)187,. and cases cited. '

The sale in this case worked an equitable conversion of the land into money, and the widow was entitled, accordingly, to a distributive share of the purchase money as part of the personal property of her husband.

1. PLEADING—SPEUIAL DEMURRERS—PLEA STRICKEN OUT. A plea that can only be taken advantage of by special demurrer must be stricken out, as special demurrers are abolished.

2. SAME—SUSPENSION OF RULE 0N DEMURRER. The rule upon demurrer that judgment shall be against the party whose pleadings are first defective in substance does not prevail on motion to strike out plea.

On motion to strike out plea.
Craig A. Marsh, for plaintiff.
Gaston dz: Bergen, for defendants.

SCUDDER, J. This action on the case is brought by the plaintiff to recover damages from the defendants for causing the death of a'horse of the plaintiff, which, while pasturing in a field adjoining land of the defendant Caroline Hudson, was injured by erecting and maintaining a barbed wire fence, dangerous to cattle, by which the horse was fatally torn, and from which injury he died. Several counts vary the statement. In this declaration the defendant pleaded—First, the general issue, which is admitted to be a good plea; second, that the fence complained of was a partition fence between the land of said Caroline Hudson and the land of one Charles Hyde, on which the plaintiff’s horse was pasturing; that it was lawfully constructed, of post and rails, with a fence wire strung along the top thereof. and such as was in common use, not calculated to do injury, and was kept with due care and repair. And, further, that it was erected and maintained by the leave and license of said Charles Hyde, the owner of the close in which the plaintiff’s horse was depasturing.

This plea is embarrassing, and bad for duplicity in presenting several distinct defenses. As the plaintiff could only take advantage of the defect by special demurrer, and special demurrers are now abolished by statute, (Practice Act, § 139,) the motion is properly made to strike out the plea. Salt Lake City Bank v. Hendrickson, 40 N. J. Law, 52; Practice Act, § 132.

The suggestion is made that the declaration is also irregular and defective, and framed so as to embarrass the trial of the action. The rule upon demurrer, that judgment shall be against the party whose pleadings are first defective in substance, does not prevail on motion to strike out the plea. Hogencamp v. Ackerman, 24 N. J. Law, 133.

The plea will be stricken out, but with leave to amend on payment of costs.

WILL—ADVANCEMENTS—RELEASE BY QUITCLAIM DEED—EVIDENCE.

A son and his wife executed to his father a quitclaim deed for all their right, title, and interest to a certain farm in Iowa, and also all “right, title, claim, and interest in and to all property now owned or hereafter to be acquired by the said Thomas M. Drake, ” the father. The son also made admissions to having received his share of his father’s estate. Held, that the son’s claim for his share, after the death of the father, cannot be maintained.

T. D. Darling, for complainant.
H. F. Galpin, for defendants.

BIRD, V. C. The bill is for partition of lands of which Thomas M. Drake died seized. One of his children, John W., claims an interest as heir at law. This claim is resisted. It is said that John had his full share of his father’s estate during the life-time of the father, and that both he and his wife released and quitclaimed unto the said Thomas M., and to his heirs and assigns, forever, all their right, title, and interest to a certain farm in Scott county, in the state of Iowa, and also all “right, title, claim, and interest in and to all property now owned or hereafter to be acquired by the said Thomas M. Drake.” Besides the complainant, Thomas M. had other children; and, in addition to the written acknowledgment of his full share of his father’s estate, which was made to his father in his life-time, he acknowledged that he had had his share of his father’s property since his father’s death, and said that he did not want anything more. The proof is that John repeatedly made such declarations since his father’s death. John denies them in his answer, insisting that he never made such statements, and insisting, also, that the writing alluded to was not intended to be used for the purposes which appeared upon its face. He insists that his father never advanced him anything, but that all he ever received from his father he gave a valuable consideration for. John endeavors to give a reason for the formal execution of the written acknowledgment of having received his share by himself and his wife. He says his father had been a widower for some time, and was about to remarry; that he was about leaving Iowa to come to New Jersey for that purpose; and, using his words, “that the object of that paper or quitclaim deed, so called, was to satisfy the woman he was about to marry in New Jersey in regard to property, and no evidence of the advancement to me.” But this declaration of the meaning of the instrument is radically inconsistent with the instrument itself, and as inconsistent with the repeated statements of John to several witnesses. Although he denies making the statements, I can see no reason for discrediting the witnesses who said he did. The instrument speaks for itself.

It is important to observe that John is the only child who executed any such release, and that, if the execution of any such paper was to bear a part in effecting his new marital relations, the other children of Thomas would have been called upon to join therein. No reason has been assigned, and perhaps none could be, for the other children taking no part in this family transaction. It is in proof, also, that the father said on different occasions that John had had his full share of his estate. Therefore, when I take into consideration the formal execution of the written acknowledgment, John’s repeated admissions that he had received his full proportion, and the father’s declarations that he had advanced to John all that he was entitled to, and in fact that they had recently had important business transactions, I am irresistibly led to the conclusion that John is not entitled to any share or interest of or in the lands sought to be partitioned. I think this view of the case is fully sustained by the case of Havens v. Thompson, 26 N. J. Eq. 383. In that case the son gave to his father a receipt in these words: “Received of Daniel Havens the sum of six hundred dollars in full in lieu of dower;” and it was held that this was an agreement which barred the son from making claim to a share of his father’s estate. The evidence shows that, just prior to the execution of this paper by John W., he and his father had had quite extensive dealings in real estate, which involved the farm in Scott county, Iowa, referred to in the paper, showing conclusively that there was some consideration therefor, which is in harmony with John’s admissions and with the father’s declarations, and is sustained by the case of Spear v. Speer,14 N. J. Eq. 240.

I will advise a decree in accordance with these views.

STATE (SAVAGE, Prosecutor) v. COLLINs.
(Supreme Court of New Jersey. November 10, 1886.)

1. CpgvTINUANOE AND ADJOURNMENT—JusTIOE’s COURT—ABsENcE OF MATERIAL ITNEss. If, in the court for the trial of small causes, a party files alegal affidavit of the absence of a material witness out of the state, the justice may postpone the trial to'a time not exceeding three months from the return-day.

2. SAME—BUT ONE ADJOURNMENT ON SAME AFFIDAVIT.

If, upon filing such affidavit, the justice adjourns to a time less than 30 days from the return-day, a second adjournment cannot be legally granted the party to a time exceeding 30 days from the return-day; a further affidavit of the continuing absence of the witness not being filed.

v8. SAME—JUDGMENT WITHOUT JURIsDIOTION. In this case the justice proceeded with the trial, and rendered judgment, after he had lost jurisdiction of the cause.

(Syllabus by the Court.)

On certiorari. Opinion states the facts.
Barton B. Hutchinson, for prosecutor.

PARKER, J. On August 24, 1885, George L. Collins commenced an action, by warrant, in the court for the trial of small causes, against Daniel L. Savage. Mr. Savage, when arrested, entered into recognizance to appear before the justice on the fifth day of September, 1885. On the day last named both parties appeared, and Collins applied for an adjournment. Upon his making and filing an affidavit of the absence from the state of a material witness, the trial of the cause was postponed to the twenty-first day of September. On that day both parties again appeared before the justices, and Mr. Collins then applied for a further adjournment, alleging as a reason the continued absence of the witness, but not making further affidavit of the fact. Savage objected to the adjournment, but the justice granted the application, and again postponed the trial to the thirteenth day of October, a date more than 30 days after the time of the first appearance of Savage before the justice, according to .the condition of the recognizance.

In this cause it is not necessary to decide whether the adjournment to the thirteenth of October would have been legal if Collins had made an additional afiidavit of the continued absence of the witness. Upon filing the affidavit of the fifth of September, the justice had the power to postpone the trial of the cause to a day not exceeding three months; but, the adjourned day having been fixed for the twenty-first of September, the justice had no power, on the strength of the original afiidavit only, to further postpone the trial to a time more than 30 days from the day of the first appearance. There was no proof before the justice on the twenty-first day of September that the witness was then absent from the state, and, without such proof, the further postponement, if granted, should have been to a day not exceeding 30 days from the time of the appearance mentioned in the recognizance. Revision, p. 545, §