In Dorsey v. Sheppard, 12 Gill & J. 192, where there was a nuncupative will, the court approved the language of Sir JOHN NICHOLL just quoted. The prayer of the petition will be denied.

(49 N. J. E. 452)

DRAKE V. LANNING.

(Court of Chancery of New Jersey. May 17, 1892.) CONTRACT TO MAKE WILL.

1. A promise by one to make a particular testamentary disposition of property for the benefit of another is unenforceable unless founded upon a sufficient consideration.

2. A cross bill praying relief, based upon such a promise, stricken out because it fails to disclose such consideration.

(Syllabus by the Court.)

Bill by Drake, executor of Mary Titus, deceased, against Henrietta Lanning to foreclose a mortgage. On motion to strike out answer and cross bill. Motiou granted in part.

H. A. Drake, for the motion. H. N. Barton and A. V. Dawes, opposed.

PITNEY, V. C. This is a bill to foreclose a mortgage given by the defendant to the complainant's testatrix. This bill, besides setting out the bond and mortgage in the usual form, also states a variety of circumstances attending the giving of those instruments which, so far as they affect the questions now to be considered, will be referred to hereafter. The answer admits the giving of the bond and mortgage, and that the mortgage debt has not been paid in money, and that the mortgagee died testate, and that complainant is ber executor. It also admits most of the collateral facts set out in the bill. The cross bill sets up a parol agreement made by the testatrix by which she agreed to bequeath to the defendant the bond and mortgage held by the complainant, and also sufficient money to pay off a prior mortgage upon the same premises, held by Mr. Hamill, and it prays that this agreement may be specifically performed by the complainant. The complainant moves to strike out this pleading, assigning 19 reasons in the notice of his motion, which I think may be condensed into 2: First, that the effect of the contract set forth in the answer and cross bill was to vary a written contract by parol; second, that the contract set up discloses no consideration, and is therefore a nude pact; or that, if there be any consideration, it is so small as not to justify this court in decreeing its performance. The facts which are admitted by the pleadings are as follows: Complainant's testatrix and defendant were sisters, and at the date of the bond and mortgage in question were widows. The defendant's husband died in September, 1886, seised and possessed of a fertile and valuable farm of about 126 acres, which are the premises comprised in complainant's mortgage, situate in Mercer county, upon which were large and valuable buildings. This farm, with its buildings, constituted the homestead upon which the defendant and her husband lived in his lifetime and at his death. They were subject to two mortgages held by the complainant's testatrix.

The first was dated March 26, 1863, and secured the sum of $4,300, but which had been reduced to $3,800. The amount due on the second mortgage was about $7.900, making the amount due to complainant's testatrix in the aggregate between $11,000 and $12,000. The defendant's husband left three sons, his heirs at law, and by his will gave his property to his children and widow, and authorized the executors to sell and convey his real estate. In the spring of 1887 the executors sold the personal property and stock upon the farm, and the defendant and the son who had lived at home made preparations for abandoning it. They did not, however, leave the actual possession of the farm. By deed of assignment dated November 1, 1887, but delivered on November 3, 1887, complainant's testatrix assigned the bond and mortgage for $3,800 to Mr. Hamill. By deed of the same date, but acknowledged and delivered on the 3d of November, the executors of defendant's husband conveyed the mortgaged premises to the complainant's testatrix. The consideration expressed in it is one dollar, and in it is the following recital: "The above premises are conveyed subject to a mortgage made by Absalom P. Lanning and wife to Mary Titus, recorded in the Mercer county clerk's office in Vol. O of Mortgages, page 229, and subsequently by Mary Titus assigned November 1, 1887, to Hugh H. Hamill, and this conveyance is made for the further purpose of extinguishing the mortgage on said premises made by said Absalom P. Lanning and wife to Mary Titus, recorded in said clerk's office in Vol. 59 of Mortgages, pages 73, etc., the principal of which last-mentioned mortgage, with interest thereon to this date, amounting to the sum of seven thousand nine hundred and seventy dollars." On the same day the complainant's testatrix conveyed the mortgaged premises to the defendant for the consideration of $8,000, subject to the first mortgage of $3,800, and received as security for the purchase money the bond and mortgage here in question, bearing date the 3d day of November, 1887, conditioned to pay the sum of $4,200 in three years from date, with interest payable annually. The complainant's testatrix also at the same time paid to her sister, the defendant, the sum of $1,000 for the purpose, as alleged in the bill, of enabling her to restock the farm. The complainant's testatrix died in November, 1889, over 80 years old, possessed of a fortune of about $40,000, and by her will bequeathed to the defendant only $500.

The facts alleged in the answer and cross bill relied upon as a defense, and which, for the purposes of this motion, must be taken to be true, are as follows: That complainant's testatrix, prior to and at the date of this transfer, assured the defendant that she never expected to collect any interest on her bond and mortgage unless she became in need of funds, and that the only reason she exacted a bond and mortgage from the defendant was in case she should ever become in need of funds she would have the interest on the mortgage. That the complainant's testatrix in her lifetime refused to receive any

interest on the bond and mortgage. That she said she didn't want any interest from them, because she was not in need of money. That after the death of defendant's husband the defendant and her son Thomas, who had lived and was living upon the farm at his father's death, had made up their minds to remove from the mortgaged premises; and Mrs. Titus, being informed of this determination, and being very desirous that the defendant should continue to live on the farm, agreed with the defendant that, if the defendant would purchase the mortgaged premises, and would procure some one to take the first mortgage for $3,800, and would give her a bond made by defendant for $4,200, to be secured by a mortgage on the premises, and if the defendant would agree to remain on the farm with her son Thomas, and if she would cultivate and operate the premises, then she (the complainant's testatrix) agreed upon her part to pay to this defendant $1,000 presently, out of which sum this defendant was to pay the back taxes upon the mortgaged premises, amounting to about $200; and the complainant's testatrix further promised and agreed that she would execute a will wherein and whereby she would bequeath to the defendant the aforesaid bond and mortgage made by the defendant to com. plainant's testatrix, and also a sufficient legacy out of which the defendant was to pay and discharge the first mortgage for $3,800; and in case the defendant should die before the complainant's testatrix, all the above bequests were to go to her son Thomas C. Lanning. That in pursuance of and relying upon that agreement the defendant did purchase the mortgaged premises, and did execute and deliver the bond and mortgage in question in accordance with it, and she also procured Mr. Hamili to take an assignment of the first mortgage, and did agree to remain on and operate the farm, and did remain thereon, and did in all things perform her part of the agreement; and that the complainant's testatrix, in pursuance of her agreement, paid to the defendant the sum of $1,000; and, further, that the defendant, in reliance upon that agreement, has, with her son Thomas, ever since continued to reside upon the mortgaged premises, and to cultivate them, and that she has expended since the making of the agreement large sums of money upon the premises, in setting out thereon peach and apple orchards, in repairing and building fences, and in manuring and fertilizing said mortgaged premises.

I will consider first the objection of want of consideration. It is well settled that a sufficient consideration for a contract may consist of either a benefit to the promisor, or a detriment to the promisee, or both combined. Let us see if either can be found in this contract. The fair inference from the facts as stated is that this agreement to bequeath the bond and mortgage and moneys was contemporaneous with, and part and parcel of, the arrangement which resulted in the conveyance of the farm to the defendant and the giving of the bond and mortgage. There is no allegation that the complainant's

testatrix received any benefit from the transaction, unless the receiving of the cash on the first mortgage from Mr. Hamill was such a benet; but al! that the defendant had to do with that transaction was to request Mr. Hamill to advance the money and take such assignment. There is no allegation that any bonus was paid to Mr. Hamill for so doing, or that the property was not ample security not only for that first mortgage, but also of the second mortgage, here in question. The testatrix was a mere conduit of the title from the executors of Lanning to the defendant, and the result of the transaction was that the complainant's claim against the property was reduced from nearly $12,000 down to $4,200, and that she received in cash $3,800, and paid out of it $1,000 to the defendant, leaving net cash received $2,800, which, added to the mortgage,-$4,200,-made $7,000 in place of nearly $12,000, showing a deduction of nearly $5,000 from testatrix's claim. There is no allegation that the testatrix ever lived upon the premises, or expected so to do, or that she was to derive any personal benefit from the occupation of it by the defendant and her son Thomas; nor is there any allegation that the reason why the testatrix entered into the arrangement and stipulated for the continuing of the occupation by the defendant and her son was that the value of the farm as a security for the mortgages was thereby increased, and no such inference can legitimately be drawn from the bare facts, and in the absence of any allegation of a deficiency in value of the premises to secure the amount originally due to the testatrix. On the contrary, the more probable inference would be that the object of the testatrix was to confer a benefit upon her sister, and furnish her a home in her declining years. With regard to the detriment to the defendant, the single fact from which that can be inferred is this: "That she and her son Thomas had made up their minds to remove from the mortgaged premises," and that the testatrix was desirous that they should remain upon them, and that she, the defendant, agreed to remain on the said farm with her son Thomas, and to cultivate and operate the premises." There is here no allegation that the defendant had in contemplation the engaging in any other business, occupation, or had within reach any other means of subsistence, or that she abandoned or lost any opportunity which she had to improve her condition, or that it was part of the agreement that the defendant should make any material improvements upon or additions to the farm or buildings or fences thereon. The contract was simply that she should continue to live upon the farm and cultivate it. Here, again, I cannot see that there is any inference to be drawn that such continuing to live upon the farm and cultivate it would be any detriment to the defendant. The presumption would be quite the other way, that it would be a benefit to her.

The allegation of the cross bill is that the defendant, in reliance upon the agreement, has with her son Thomas continued to reside upon the mortgaged premises,

and to cultivate them, and that she has expended since the making of the aforesaid agreement large sums of money upon the said premises, in setting out thereon large peach and apple orchards, in repairing and building fences, and in manuring and fertilizing the said mortgaged premises. There is no allegation that the net income of the farm has not been sufficient to meet these expenses, nor that the farm has not thereby been increased in value as much as the cost of these improvements; nor is there, as before remarked, any allegation that the premises are not worth the amount of the two mortgages upon them, and more. And, as the title to the premises is in the defendant, she, and not the complainant's testatrix, will receive all the benefit of these alleged improvements. But if it were otherwise, and these improvements have been made at a loss to the defendant, still, as it was no part of the alleged contract between the testatrix and the defendant that the defendant should make any such improvements, it is difficult to see how any equity can be founded upon them, or that she can say that she made them in reliance upon and performance of the agreement. The law governing contracts of this class is well settled in this state. A man, or, as in this case, a woman, may enter into a binding contract to dispose by will, in a particular manner, of the whole or any part of his property, real or personal. If the character of the contract, or its subject-matter, be such as requires it to be in writing in order to satisfy the statute of frauds, it may, though made by parol, nevertheless be enforced in this court on the score of part performance by the one party' to the extent of irretrievably altering his position, so that it would be a fraud upon him to refuse the performance of the other part of the contract. But whether witnessed by a writing, or resting wholly in parol, like all other enforceable contracts, it must be founded on a sufficient consideration, either of benefit to the one party or of detriment to the other, or of both combined. I can conceive of no ground upon reason or upon principle, and can find no authority, for any exception in this respect in favor of this class of contracts. On the contrary, it seems to me that this fundamental rule should be observed and enforced with greater, rather than less, rigor in such cases. To relax it would be to open the door to the proving and establishing of wills made by parol, and in contradiction, it may be, of a written will, executed with all the statutory formalities. I concur in what is said by the annotator of the third American edition of Fry on Specific Performance, § 223: "Such a contract is regarded with suspicion, and will not be sustained except upon the strongest evidence that it was founded upon a valuable consideration, and was the deliberate act of the decedent."

I have examined every reported case of this class in this state, as well as those cited by counsel from other jurisdictions, and find in each a well pleaded aud proven consideration. In France v. France, 8 N. J. Eq. 650, which, though not a case of a promise to give by will, is

relied upon by the defendant, the allegation was that the defendant, who was the complainant's father, marked off to him a piece of the father's woodland, and agreed with the son that if he would go on it, and clear and improve certain portions of it, the defendant would give him a deed for it; that complainant, in reliance on this promise, took possession, and spent considerable sums of money over and above all the income which he received from the premises, in clearing and bringing into cultivation a portion of the land, building a house, barn, rail fence, stone wall, a road through the tract, and in planting fruit trees. The chancellor said that these facts were proven, and decreed in the son's favor. Here was a clear case of consideration by way of detriment to the promisee. Hespent more money on the land of his father upon the strength of the promise than the income that he received from it; and, if the father had retained the title to the premises, he would have been benefited to that extent himself, besides injuring his son. The case does not help the defendant herein. Johnson v. Hubbell, 10 N. J. Eq. 332, the consideration was a conveyance of land by the son to his sister, at the request of the father, who, in consideration of it, promised to dispose by will of his property in a particular manner, and to the advantage of the son. In Van Dyne v. Vreeland, 11 N. J. Eq. 370, 12 N. J. Eq. 142, the consideration was the loss by the complainant of the share which he would otherwise have received in his own father's estate and his continued services for the defendant from his infancy until he was 25 years old. See 11 N. J. Eq. pp. 375, 379, bottom p. 380; 12 N. J. Eq. 150, 151. In Davison v. Davison, 13 N. J. Eq. 246, the

In

consideration was the services of the son rendered to the father on his farm for 15 years, during which period the father was infirm, and unable to take care of the farm or himself, and needed the assistance of the son. See page 249. In the last two cases there was a consideration of both benefit to the one and detriment to the other of the contracting parties. In Young v. Young, 45 N. J. Eq. 27, 16 Atl. Rep. 921, a son expended large sums of his own money, and that of his wife, who was the complainant, in improving the farm in dispute, by erecting upon it new buildings and fences, and in repairing and enlarging those already upon it. See pages 29, 30, 45 N. J. Eq., and pages 922, 923, 16 Atl. Rep. The chancellor held this to be a good consideration. Here, again, the money was expended on the land of the promisor, and, if he had been permitted to retain that land as against his promise, he would have received a benefit equal to the injury which the promisee would have suffered.

Other cases are relied upon by the defendant. Coles v. Pilkington, L. R. 19 Eq. 174, decided by Vice Chancellor MALINS, is distinguishable from this case. There the complainant, the promisee, was about to enter into a particular business at a particular place, and had made all her ar rangements so to do, and was induced by the promise of the other party to give up

a

and abandon that opportunity for going into business in order to take possession of the premises in question. It was decided, so far as related to the question of consideration, on the strength of the case of Loffus v. Maw, 3 Giff. 592, 8 Jur. (N. S.) 607. But with great respect I think that Loffus v. Maw did not go so far as Coles v. Pilkington. In the earlier case the testator, when in advanced years and ill health, induced the plaintiff, a niece, to reside with and continue valuable services to him on the faith of his representations that by so doing she would become entitled to the benefit of property for life at his death; and by codicil to his will, which was read over to her, trusts were created in her favor. The court held that the testator could not revoke the trust. There the consideration of the promise was valuable services rendered by the plaintiff to the testator. In Coles v. Pilkington there were no benefits whatever to the promisor, and the only injury to the promisee was that she abandoned project which she had for going into business. That feature of the case distinguishes it from the case in hand, but, in my judgment, it was a very slender ground upon which to base a decree. The whole case shows that the object of the deceased in that case, as here, was to confer a benefit upon the plaintiff, and that she accepted it as such; and having been decided by a judge who had the misfortune to be frequently reversed, even if it were in point, I doubt if I should feel justified in following him. The case is classified in the digests as one of an executed gift. The complainant was put in possession of the premises in question by the deceased in execution of a parol gift. On that ground perhaps it may be sustained. Hammersley v. De Biel, 12 Clark & F. 45, relied upon by the defendant, was a case of contract between the father of an intended wife and her intended husband, as to a marriage settlement, in which the father agreed to settle by will a sum of money upon his daughter and her children, and in consideration of it the intended husband settled a jointure upon his wife and married her. The action was brought by the issue of the marriage, and it was held that the father was bound to make good his promise. The principle stated by Lord LYNDHURST, in delivering judgment in the house of lords in that case, is this: "If a party holds out inducements to another to celebrate a marriage, and holds them out deliberately and plainly, and the other party consents, and celebrates the marriage in consequence of them, if he had good reason to expect that it was intended that he should have the benefit of the proposal which was so held out, a court of equity will take care that he is not disappointed, and will give effect to the proposal. The headnote of the case is an extract from the opinion of Lord COTTENHAM in the same case when before him in chancery; and Lord CAMPBELL, in delivering his concurring judgment in the house of lords, (page 88,) repeats that extract as follows: "A representation made by one party for the purpose of influencing the

conduct of the other party, and acted on by him, will, in general, be sufficient to entitle him to the assistance of this court for the purpose of realizing such representation;" and adds: “Of course Lord COTTENHAM is here speaking of negotiations in reference to marriage; and, if that were not to be considered as the doctrine of a court of equity, the most monstrous frauds would be committed." Marriage has always been held to be a valuable consideration, and I think the principle stated by Lord COTTENHAM, standing alone, is liable to mislead. The case of Lobdell v. Lobdell, 36 N. Y. 327, is undistinguishable in its main features from France v. France, supra. At page 331 the court says: "The promise to convey, as found by the referee, was not a mere voluntary one, but was made upon a valuable consideration, emanating from a loss or disadvantage to the promisee. Of the same character is Freeman v. Freeman, 43 N. Y. 34. At page 39 the court says: "Expeuditures made upon permanent improvements upon land of the owner, induced by his promise, made to the party making the expenditure, to give the land to such party, constitute, in equity, a consideration for the promise."

19

1. A corporation duly organized under the tenth section of the act concerning corporations, as amended by the act of February 29, 1888, (Pamph. 112,) is entitled to the same right of access to and examination of the public records of the county as an individual would be.

2. When employed to examine the title to any particular piece of property, such corporation is subrogated to the right of its employer to have such access, and the fact that it contemplates making a contract of guaranty of the title to the land in question does not detract from such right of access.

(Syllabus by the Court.)

Bill by the West Jersey Title & Guarantee Company against Robert L. Barber, clerk of Camden county, to enjoin him from preventing the emplɔyes of plaintiff from having access to the public records. Injunction granted.

S. H. Grey and T. E. French, for complainant. D. J. Pancoast, for defendant.

PITNEY, V. C. The complainant is a cor. poration organized under the tenth section of act concerning corporations, as amended by act of February 29, 1888, (Pamph. 112.) Its object is intimated by its title, and is set forth in the certificate of incorporation as follows: "The exam

ination, insurance, and guaranty of the title to lands and estates, or interests in lands, in the several counties of the state of New Jersey, and issuing of certificates, policies, contracts, and undertakings therefor, upon such terms and conditions, restrictions and limitations, as may be determined by said company, and to acquire title to and to sell any lands or interest therein in respect to which said company has made any contracts of guaranty; the guaranty of bonds, mortgages, and other securities; to act as agent to negotiate, purchase, and sell bonds, mortgages, and other securities, or in its own behalf to purchase and to sell the same; and as agent to buy, sell, exchange, let, lease, and manage real estate, and collect the rents, issues, and profits arising therefrom; and also as agent to effect and maintain insurances against loss or damage by fire or other casualties to buildings or other properties. Its place

of business is in the city of Cainden. The defendant is the clerk of the county of Camden, and the object of the bill is to enjoin the clerk from preventing the employes of the complainant from having access to the public records and papers in his office when they have occasion to examine the same for the purposes of the business of the corporation.

The bill and affidavit show that the company was organized in 1888, and has been in active business ever since; that, at the beginning of the present year, they had issued 1,750 contracts of insurance, guarantying titles of land, and 14 certificates of the examination of the title to land; and it alleges that, in order to carry on its business, it is necessary for it to enter into contracts with relation to the status of the titles of lands in Camden and other counties, and, in order to do so with safety, it is necessary for it, by its agents, to have, during every business day, access to the records of the office of the clerk of the county, for the purpose of looking for judgments, mechanics' liens, attachments, recognizances, docketed judgments, sheriff's bonds, and other public records affecting the title to lands, or forming incumbrances or liens upon lands, and it asserts that it has the right, as a citizen of the state, to have such access, for the purpose of examination and inspection, at all proper times of every business day, subject to such proper and reasonable rules and regulations of the clerk having the custody of such records as are necessary for their protection and preservation; and it alleges that, in exercising its privilege of examining the records in the defendant's office, it has in all respects conformed to the rules and regulations of the office, and that it has not at any time or in any way interfered with its use by the defendant or others interested therein. The bill further sets out that objections had been made by the defendant from time to time within about eight months previous to the filing of the bill to the use of the records in his office by the searcher employed by the complainant, and that finally, on the 7th of March, 1892, said defendant refused to permit complainant's searcher to make any search or examina

tion of the books and papers in his office unless he would first specify what particular books and against what particular names he wished to search, and that on the 8th of March said searcher went by order of the complainant to the clerk's office for the purpose of making an examination of records and files of the office for the purpose of its business, and on that occasion gave to the defendant the names of the persons he wished to search against, and a list of the books he wished to examine, and the clerk replied to the said searcher that, as a representative of the complainant, he refused him access to the records; and that the complainant is absolutely prevented from obtaining ac cess to the books and records and files in the office of the clerk, in the custody of the defendant, and is thereby unable to carry on its business. The defendant, by his answer, admits the organization of the company, and that it is doing the business set forth in its bill, and makes this denial: "And he denies that the said company has conformed to all the rules and regulations of his said office in its use of the same, and the records thereof; and he denies that the said company has not in any way or at any time interfered with the use by this defendant, or others interested therein, of the said public records, as alleged in paragraph 4 of said bill, which is in precisely the same language used in the allegation in that behalf in the bill, and does not set out what particular rule or rules of the office the complainant has failed to conform to, or in what particulars or in what way he has at any time interfered with the defendant or other persons in the use of the records. Such denial is of no value. The real defense set up in the answer is as follows, viz. That an important part of the business of the complainant consists in making and giving, for a consideration, certificates of searches to its customers in respect to titles of land and liens thereon, such as the defendant has been and is ac customed to give upon payment of the fees prescribed by law, and that to a very great extent the business of the company is one of the same character and in opposition and rivalry to that done by the defendant in his official capacity, and that, in the conduct of such rival business, it has been the custom of the said company to send its clerks and agents to the office of the defendant continuously, at almost all hours of the day, from the time his office is open in the morning until it is closed in the afternoon, and that it prac tically makes the defendant's official office the office and place of business of the said company, from which to do a rival business with the defendant, to his great injury and detriment, by the diminution of the official patronage naturally and properly belonging to the office; and he denies the right and power of the company to do so; and for the purpose of protecting himself against the great inconvenience caused to him in the conduct of the official business and the duties of his office by the continual presence and labor of the clerk and agents of the company, in the conduct of its business, in and about the de