(50 N. J. E. 309)

PITNEY, V. C. The bill is filed by a judgment creditor against his debtor and a person to whom he had conveyed land for the purpose of subjecting the land conveyed to the lien of the judgment. Prior to the conveyance in question Benjamin Armstrong was indebted to the complainant for borrowed money in the principal sum of $400, with arrears of interest, and also to two or three other persons. He was the owner of a small farm, worth enough to pay all his debts, including a small mortgage. This farm he conveyed to his son Thomas, the defendant, for the consideration expressed in the deed of $1,200. The answer of Thomas sets out the consideration as follows: $1,200 in the promissory notes of his father, which he, Thomas, held against him; the assumption by Thomas of a debt owed by the father to one Graziania for $325; a mortgage on the premises for $375, held by one Hein; and a balance of $165 due on a judgment against the father, held by Mr. Newcomb; making in all $2,040. In point of fact the son did not hold any notes against his father, and paid him nothing for the property, but agreed, in consideration of the conveyance, to pay certain debts of his father, including the complainant's. In pursuance of that agreement he called on the complainant, and offered him his note in exchange for that of his father's. This the complainant declined to accept, and commenced suit against the father, and obtained the judgment upon which his bill is founded. After the refusal of the complainant to accept the note of the son the latter gave his father his note for $500, which the father still holds. The offer by the son to give the complainant his note in exchange for his father's note held by the complainant was made with the consent of the father, and was part of the agree ment upon which the conveyance was made; and the giving of the note by the son to the father was evidently an afterthought, and intended to make a show of a full consideration for the conveyance. This $500 note to the father was not set up in the answer, and its existence was discovered during the taking of the deposi

tions before the master. There was a feeble attempt to prove that the father was indebted to the son for work and labor done at the time of the conveyance, and that such indebtedness formed a part of the consideration. The proofs supporting this indebtedness were very unsatisfactory, and, taken in connection with the statement in detail found in the answer, failed to establish it. Upon these facts it seems clear enough that the conveyance is infected with the vice of having been made to hinder and delay complainant in the collection of his debt. Under its shield the debtor said to the creditor: "You cannot force me to pay my debt to you; and I insist that you shall take the promissory note of my son, payable at a future day, in payment and satisfaction of my note, instead of the actual money, to which by the law of the land you are en. titled." This was imposing terins upon him, and hindering and delaying him in the use of the regular and lawful means of collecting the debt. Knight v. Packer, 12 N. J. Eq. 214; Van Nest v. Yoe, 1 Sandf. Ch. 4; Owen v. Arvis, 26 N. J. Law, 22; Livermore v. McNair, 34 N. J. Eq. 478; Wait, Fraud. Conv. § 11. At page 483, 34 N. J. Eq., Vice Chancellor VAN FLEET tersely says: "A creditor has a right to have his debtor's property applied to the decrease of his debts by the due course of law, and any disposition which a debtor may attempt to make that has the effect of defeating this right is a fraud against the creditor. The complainant is entitled to relief. The defendant Thomas executed a mortgage upon the premises to secure one of the items of indebtedness which he assumed. The mortgagee was not made a party, and his rights cannot be affected by a decree in this cause unless the mortgage was given after the bill was filed and a notice of lis pendens was filed in the county clerk's office.

"

(50 N. J. E. 306)

MCKEE V. JORDAN et ux. (Court of Chancery of New Jersey. June 2, 1892.) MORTGAGES-REDEMPTION.

Complainant executed a deed of conveyance to the defendant, with a nominal consider. ation, and delivered it to a solicitor, with authority to deliver it to the defendant as security for the loan to her son of $600. Defendant, in complainant's absence, accepted the deed, which he supposed came from the son's possession as security as well for $600 then loaned as for $250 previously advanced. He was notified by the solicitor that complainant had executed it as security for $600 only, but relied upon an untrue statement by the son that his mother had agreed that it should stand as security for both sums. Held, complainant entitled to redeem upon pay. ing $600.

(Syllabus by the Court.)

Bill by Rosanna McKee against Charles B. Jordan and wife to redeein a mortgage in the form of an absolute conveyance. Relief granted.

John A. Dennin, for complainant. R. L. Lawrence, for defendants.

PITNEY, V. C. This is a bill to redeem a mortgage in the shape of an absolute conveyance. The right to redeem is ad

mitted. The sole question in dispute is as to the amount due. Complainant contends that the debt secured by the conveyance was originally $600, and no more. The defendant contends that it was $850. The actual debtor is the son of the complainant. At the date of the deed, he was already indebted to the defendant Jordan in the sum of $250, and applied to him for the further loan of $600. Jordan required security which should cover as well the old as the proposed new loan. The son said his mother would secure it by a lien on her property, and employed Mr. McCrea, a solicitor, to prepare the necessary document. Mr. McCrea, on the son's instruction, prepared an absolute conveyance from the mother to the defendant Jordan, with a nominal consideration, and went with the son, in the absence of Jordan, to the complainant, and explained to her that her son wished to borrow $600 from Mr. Jordan, and that the deed was to be given as security for that amount, which was to be repaid in installments of $50 at stated periods. No mention was made of the other $250 on that occasion, or, so far as the case shows, at any other, in the complainant's pres ence. She seems to have been at all times, until after the execution of the deed, in complete ignorance of any indebtedness from her son to the defendant, except the proposed loan of $600. She is quite illiterate and unfamiliar with business methods, and signed the deed by her mark, and ac knowledged and handed it to Mr. McCrea, supposing that it was used as security for $600 and no more. The defendant was not present on this occasion. Mr. McCrea was present when the deed was delivered to the defendant, and the $600 paid by him to the son, (though it does not appear that he on that occasion produced the deed;) and he then stated to the defendant that the complainant had executed it on the supposition that it was security for $600 and no more. The son, however, declared that he had told his mother about the other $250, and that she was willing the deed should stand as security for the whole $850, whereupon the defendant Jordan, upon the security of the deed, and not knowing that it had been in trusted by the complainant to Mr. McCrea, and not to ber son, paid the $600 to the son, and took his note, payable at a fu ture date, for $850. On the occasion of the payment of the first installment of $50 the complainant discovered that the defendant claimed to hold her deed as security for $850, consulted counsel at once, and filed this bill.

The defendant relies upon the familiar principle that where one of two innocent persons must suffer by the fraud or the abuse of authority of a third party the loss must fall upon him who has put it in the power of such third person to commit the fraud, or exceed and abuse his authority. But manifestly the essential quality of the garment of innocence with which a party must be clothed, in order to invoke the aid of this wholesome maxim, is ignorance of the real nature and extent of the authority of the third party He must be misled by some act of

the other innocent party, which upon its face authorizes him to deal, as he has. done, with the fraud doer, and he must be ignorant of any limitation upon such apparent authority. No citation of prece dent is necessary to sustain these positions. They lie at the basis of the doctrine in question. Here the defendant knew that, when the conveyance was executed, it was the intention of the grantor to limit its use and confine its office to that of a mortgage merely, and on its face it did not indicate any particular sum which it was intended to secure. If it had been handed by the mother to the son without restriction or limitation as to the amount for which it was to stand security, and had been by him delivered to the defendant, it may be that the latter would be entitled to hold it as security for all such sums as the son might represent to him that he was authorized to borrow upon it. In such case the delivery. to the son without restriction might be held to invest him with unrestricted power to deal with the deed; but in such case the equity of the defendant would spring, not out of the statement by the son of his power and authority, but out of the deed itself, and its delivery to and possession by the son. In this class of cases, it must be borne in mind that the misstatement by the fraud doer of his authority, standing by itself, cannot avail the innocent third party. He must show apparent authority for his statement from the other innocent party. Gauged by these tests, the defendant's case fails. The executed conveyance, which here constituted the son's apparent authority, did not bear on its face authority to pledge it for any particular sum, but, at the time of its delivery, defendant had explicit notice that the son's authority was limited, or intended to be limited, to an authority to pledge for $600. Defendant chose, in the face of this notice, to accept and rely upon the son's false statement that his mother had authorized him to pledge it for $850. In so doing, he relied upon the statement of the son, and not on the apparent authority of the possession of the deed. He was not misled by that or any act of the complainant, and cannot, therefore, cast upon her his loss. The case is distinguishable from Moore v. Bank, 55 N. Y. 41, cited and relied upon by the defendant. This renders it unnecessary to consider the more difficult question whether the mere giving of time to the son for the payment of the previous debt of $250 was sufficient, under the circumstances, to place the defendant in the position of a bona fide purchaser for value.

(48 N J. E. 307) SCHULTZ V. MITTELSTAEDT et al. (Court of Errors and Appeals of New Jersey. March Term, 1891.)

Appeal from court of chancery.

Emma Mittelstaedt and others sued Charles Schultz to cancel a mortgage. From a decree for complainants, defend. ant appeals. Affirmed.

John W. Bissell, for appellant. John Gar rick, for respondents.

PER CURIAM. Decree affirmed unanimously, for reasons given in the court of chancery.1

(50 N. J. E. 28)

KIMBLE V. WHITE et al.

(Court of Chancery of New Jersey. June 4, 1892.) WILLS-ABSOLUTE BEQUEST-SUBSEQUENT RESTRICTION-VESTED INTEREST.

1. Where a bequest is first made in terms which plainly vest an immediate estate, the subsequent addition of equivocal expressions, having a contrary tendency, will not be accepted as indicative of a contrary intention.

2. M. bequeathed the residue of her estate, consisting of money, by the following language: "3rd. 1'give and devise to Daniel M. White, son of John E. and Lizzie R. White, the residue of my estate, a sufficient amount to be used to educate him before he comes to the age of twentyone years. If he does not live to heir it, then to go to the trustees of the Methodist Church; the interest to be used in keeping up the fences and walls of the graveyard." Daniel M. White survived the testatrix, but died before he reached majority. Held that, at the death of the testatrix, he took a vested, indefeasible estate in the legacy, which at his death passed to his personal representative.

(Syllabus by the Court.)

Bill by Aaron R. Kimble, executor of Mary A. Middleton, deceased, against John Eldridge White, the trustees of Broad Street Methodist Episcopal Church, and others, for directions as to whom he shall pay the residuary estate of deceased. Howard Flanders, for complainant, Mark R. Sooy, for John Eldridge White. Barker Gummere, for trustees of Broad Street M. E. Church.

MCGILL, CH. Mary A. Middleton, of the city of Burlington, made her last will on the 28th of December, 1887, in and by which, after directing the payment of her debts and funeral expenses, and the cost of the erection of a tomb-stone to her memory, and bequeathing $500 to John Eldridge White, who was the husband of her niece, she provided in the following language: "3rd. I give and devise to Daniel M. White, son of John E. and Lizzie R. White, the residue of my estate, a sufficient amount to be used to educate him before he comes to the age of twenty-one years. If he does not live to heir it, then to go to the trustees of the Methodist Church; the interest to be used in keeping up the fences and walls of the graveyard." Then, by the will, she gave to "trustees of the Broad Street M. E. Church" its indebtedness to her, provided it should agree to keep her burial plot in order, and, to the poor, her wearing apparel, providing that her executor should select "two sisters of the church to distribute them as they may deem best," and appointed the complainant the executor of her will. She died on the 11th of February, 1889; and the complainant thereafter duly proved the will, and took upon himself its execution. Daniel M. White, named in the third paragraph of the will, survived the testator, but died in September, 1890, before he became 21 years of age, without leaving children or brothers or sisters. His father is his next of kin.

No opinion filed.

66

In April, 1890, the complainant, as executor, accounted, exhibiting the residuary estate to be $7,000 in money. There are two Methodist Episcopal churches in the city of Burlington, both of which are incorporated; one by the name, "Trustees of the Broad Street Methodist Episcopal Church," and the other by the name, Union Methodist Episcopal Church. The testatrix was connected all her life with the former of these churches; her mother having been a member of it. When she died, she was unmarried, at the age of 47 years. She had for many years been active in the work of the Broad Street church. Her burial plot was in the graveyard of that church. She was not connected in any way with the Union Methodist Episcopal Church. The executor now seeks direction as to whom he shall pay the residuary estate. On behalf of the defendant, John E. White, it is claimed that Daniel M. White, having survived the testatrix, took a vested indefeasible estate in the residue bequeathed by the third paragraph of the will, which by law passes to his father as his next of kin. It is, on the other hand, contended, in behalf of the trustees of the Broad Street Methodist Episcopal Church, that Daniel took an estate contingent upon his reaching the age of 21 years, and that, as he did not reach that age, his estate was divested, and the residuary property bequeathed to him, in virtue of the terms of the will, passed to the Broad Street church. The Union Methodist Episcopal Church is a defendant in this suit, but has failed to answer. It makes no claim to the property.

It is observable from this statement that it is necessary to first determine the time at which the death of Daniel, contemplated in the words, "if he does not live to heir it," shall happen. Is that time at the death of the testatrix, or at Daniel's arrival at majority? If it is at Daniel's majority, then, as he did not reach the age of 21 years, the further question, what beneficiary the testatrix intended by the words, "trustees of the Methodist Church," arises. If it is at the death of the testatrix, then Daniel took an indefeasible estate, and it is unnecessary to answer the latter question. It is noted that the testatrix first gives her residuary estate to Daniel without condition: "I give * Daniel M. White * * the residue of my estate." This she follows with a parenthetical clause,-“a sufficient amount to be used to educate him before he comes to the age of twenty-one years." Then she imposes a condition, upon the happening of which the bequest is to go to an. other, "if he does not live to heir it, "— obviously meaning if he does not live to take the bequest she offers. Eliminate the parenthetical clause, and the bequest is this: "I give to Daniel my residuary estate, if he lives to take the bequest." Such a bequest vests in the legatee if he survives the testatrix; for her will goes into effect at her death, and the right to that which it gives absolutely vests then. Now consider the bequest as it is affected by the parenthetical clause. Is there a change? That clause assumes that, before Daniel

reaches the age of 21 years, he will not | have the beneficial use of the legacy, and provides for the expenditure of a portion of the moneys given to him, within that time, for his benefit. It assumes that which the law contemplates and requires, --that the property of the infant legatee will be husbanded and accumulated for him until he shall reach his majority; his father, in the mean while, being charged with his maintenance and education. And it serves the double purpose of relieving the father from a burden and insuring to the son the benefit of an early education. It emphasizes and directs an application of the money which, in its absence, might not be made. It expressly commands that the education is to be had "before" majority is reached. I do not perceive in this clause an exhibition of testamentary purpose to extend the contingency upon which Daniel is to take, beyond the death of the testatrix. It appears to me that the whole office of the clause is to insure a beneficial enjoyment to the legatee before the time when the law would let him into possession. Its entire reference is to possession. It is a generally accepted rule in construction of wills that the courts will lean towards the vesting of bequests, and especially residuary bequests, and that postponement of the vesting will not be taken to be intended unless such intention clearly appears. Where the bequest is first made in terms which plainly vest an immediate estate, the subsequent addition of equivocal expressions, having a contrary tendency, will not be accepted as indicative of a contrary intention. Mr. Jarman (2 Jarm. Wills, [Rand. & T. Ed.] 470) illustrates the application of this rule by the citation of two cases, as follows: "Thus, where [Dodson v. Hay, 3 Brown, Ch. 404] A., by his will, gave unto the children of his sister the whole of his real and personal estate, (subject to certain legacies,) and afterwards expressed his desire that the children should be educated with the yearly interest of whatever portion of his estate might fall to each child's lot or share, and such portion not to be otherwise claimed or inherited, directly or indirectly, until the children arrived at the age of twenty-two years, whether married or single, Sir R. P. ARDEN, M. R., held that the subsequent vague words were not sufficient to control the prior clear words, but the meaning was that the legacy should be absolute, and that the legatees should not have the command of the principal till the age of twenty-two: and he laid some stress on the fact of the interest being given for maintenance." "So, where [Montgomerie v. Woodley, 5 Ves. 522] a testator, after disposing of his real and personal estate in strict settlement, added that none of the devisees should take or come into possession before the age of twenty-five, this was held to refer to the actual possession only, and not to postpone the vesting." In the court of appeals of New York the rule laid down in Thornhill v. Hall, 2 Clark & F. 22, that in the construction of written instruments, where one estate is given in one part of the instrument in clear and decisive terms, such estate cannot be taken away or cut down v.24A.no.8-26

by raising a doubt upon the extent, meaning, or application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving that estate. Roseboom v. Roseboom, 81 N. Y. 356; Freeman v. Coit, 96 N. Y. 63. My conclusion upon this point is that the estate of Daniel M. White vested in him absolutely and indefeasibly upon the death of the testatrix, and that at his death it passed to his personal representatives. This conclusion renders it unnecessary for me to determine the second question suggested at the argument. The executor will be directed in accordance with this conclusion.

(54 N. J. L. 486)

HINCHMAN et al. v. STOEPEL. (Supreme Court of New Jersey. June 9, 1892. ) LIQUOR LICENSES-VALIDITY of Order.

Section 11 of an act concerning inns and taverns (Revision, p. 488) provides that all applications for license shall be determined by the court on the first day of its session, or upon a day then publicly fixed on by the court. An order not made upon either of said days, or upon a day to which the matter has been regularly continued by the court, is a nullity, and will, upon proper application, be set aside.

(Syllabus by the Court.)

Certiorari to court of common pleas, Camden county.

Dorothea Stoepel made application for a license to keep an inn and tavern. Isaac Hinchman and others filed a remonstrance, and the court refused to grant a license. On the same day, on the applicant's motion, an order was made opening the application for reconsideration. Hinch

man and others sue out certiorari to review the action of the court in making such order. Order set aside.

Argued February term, 1892, before DixON, REED, and GARRISON, JJ.

C. V. D. Joline, for prosecutors.

GARRISON, J. The defendant, Dorothea Stoepel, made her application at the Octo. ber term of the Caniden pleas for a license to keep an inn and tavern. A remonstrance was filed by the prosecutors of this writ, and upon October 27th the court refused to grant a license. On the same day a motion was made on behalf of the defendant to open the application, and on October 31st an order was made opening the application for reconsideration. This writ was then sued out by the prosecutors bringing up the record, and challenging the power of the court of common pleas to make the order of October 31st.

Section 11 of an act concerning inns and taverns (Revision, p. 488) provides that "all and every person applying to any court authorized by law to grant a license to keep an inn and tavern shall make his or her application to the court for said purpose, on the first day of the session of said court; and the said court shall, on the first day of said session, or on some other day thereof, publicly fixed on by the said court on the said first day, determine in open court on said application, by

granting or refusing the same." The presumption most favorable to the defendant is that October 27th was the day publicly fixed on by the court of common pleas on the first day of its session for the determination of defendant's application. The only determination reached on that day was a refusal of the license. The order to reopen was not made until October 31st, which day was neither the first day of the session, nor a day then publicly fixed on by the court, nor a day to which the consideration of the matter had been regularly continued by the court. There was therefore, on October 31st, no jurisdiction in the court of common pleas with respect to the defendant's application, and the order reopening the same for reconsideration must be treated as a nullity. The case of State v. Pancoast, (N. J. Sup.) 22 Atl. Rep. 122, is an authority in point. In that case the court, having refuseo an application, on a later day opened the matter, and allowed the petitioner to withdraw his application. It was held by this court that the order permitting the withdrawal, ha ving been made upon a day other than that publicly fixed on, was without effect; the court being at the time, with respect to the defendant's application, functus officio. In the present case the court was without jurisdiction to make the order to reopen. Let it be set aside, with costs.

(54 N. J. L. 481).

FULTON V. WOODWARD. (Supreme Court of New Jersey. June 9, 1892.) JUDGE-TERM OF OFFICE.

An act approved March 2, 1891, (P. L. 1891, p. 64,) reads as follows: "Be it enacted, etc., that the judges of all district courts in cities of this state now in office shall continue in office until the first day of April, one thousand eight hundred and ninety-one, on which day their term of office shall end. The successors of the judges of said courts now in office shall be appointed by the governor, by and with be advice and consent of the senate, and shall continue in office for five years from the first day of April, one thousand eight hundred and ninety-one. Their successors shall be appointed by the governor, by and with the advice of the senate. Held, that the 1st day of April, 1891, was within the term of the incumbent of the office at the time of the passage of the statute.

(Syllabus by the Court.)

Certiorari to district court, Newark county.

Certiorari by Elizabeth S. Fulton against Corydon A. Woodward to review a judgment. Judgment affirmed.

Argued February term, 1892, before DIXON, REED, and GARRISON, JJ.

C. N. Williams, for prosecutor. Riker & Riker, for defendant.

GARRISON, J. An act of the legislature, approved March 2, 1891, (P. L. 1891, p. 64, reads as follows: "Be it enacted, etc., that the judges of all district courts in cities of this state now in office shall con. tinue in office until the first day of April, one thousand eight hundred and ninetyone, on which day their term of office shall end. The successors of the judges of said courts now in office shall be appointed by the governor, by and with the advice and consent of the senate, and shall

continue in office for five years from the first day of April, one thousand eight hundred and ninety-one. Their successors shall be appointed by the governor, by and with the advice of the senate."

19

At the time of the passage of this act, JOHN A. MILLER, Esq., was judge of the first district court of the city of Newark, and on April 1, 1891, rendered in that court the judgment now before us. His jurisdiction is challenged upon the ground that, by force of the language above cited, his term of office ended on March 31, 1891. The question presented is purely one of interpretation. The controlling words are the three prepositions of time,-" on, "until," and "from." About the first of these, there is no room for debate. On the 1st day of April the term of the incumbent was to end. But it is contended that the word "until" usually excludes the day to which it relates, and that "from" sometimes includes it; and hence it is argued that the term of the incumbent, which was to continue until April 1st, terminated on March 31st. This contention, which rests upon a mere definition of words apart from their context, is supported chiefly, if not wholly, by the citation of authorities drawn from the law of contracts. Now, it is undoubtedly true that in the interpretation of instruments by which powers are created or estates are granted the word “until" is generally used to delimit the extent of that which is within the grant, and hence excludes the day up to which the grant runs. But where language is employed with respect to an existing and continuing power, which is to end on a future day and not until that day, the function of the prepo sition is not to limit, but to extend.

The act before us contains three provisions, distinct in time: First, the term of the incumbent shall end on April 1st; secoud, until then it shall be continued; and, third, from then his successor's term shall run. Here an existing state of things is directed to continue until a day, upon which day something is to happen to it. Now, as nothing can happen to a thing which does not exist, it is clear that a termination cannot happen to an office which has already ceased to be. Indeed, no effect, so far as I can see, can be given to that part of this act which directs that the incumbent's term shall end on April 1st, unless on April 1st there existed in the incumbent a term capable of being operated upon by the statute, in which case the whole of the day would be punctum temporis, of which the law would note no fractions. All doubt as to the correctness of this interpretation is removed by the word "from," which in this context excludes the day of departure; a meaning not resting upon authority, but upon the inherent force of the word itself. Says Mr. Justice DAVIS, in delivering an opinion of the supreme court of the United States, interpreting this phrase with respect to a public office, "a term of four years from the 24 day of March:" "The word 'from' always excludes the day of date." Best v. Polk, 18 Wall. 119. Numerous citations upon this point are given in Mr. Anderson's Dictionary of Law.