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of the city exercised their power to elect; and the question here is whether, the election having been made, the person elected could by his own act determine when his term of office should commence. It was not designed in Stilsing v. Davis to overrule Haight v. Love. In the last-named case the statute under which the officer took his title provided for the continuance of the incumbent in office until his successor had qualified, and that circumstance was not considered as controlling the rule adopted. Nor is Stuhr v. Hoboken, 47 N. J. Law, 148, adverse to the views we have expressed. In that instance the ordinance increasing the salary was passed before the officer was appointed. The court held, under a city charter containing a provision similar to the fifth section of the act of 1874, that the ordinance, having been passed before the appointment was made, was effective to fix the salary, although the ordinance did not, because of the necessity of publishing it, take effect until after the term began. Whether the relator's present term began at the time when, by his own act, he could have qualified and assumed the duties of the office, or from the date of his election, or from the Friday succeeding his election, he is equally within the interdict of the fifth section of the supplement of 1874. In either of these events the ordinance of March 18, 1886, is incapable of effecting an increase of salary for his present term.

The mandamus is denied, and the rule to show cause discharged, with costs.

BEEKMAN et al. v. BARBER et al.

(Court of Chancery of New Jersey. March 7, 1888.)

PLEDGE-LIEN-PRIORITIES.

A purchaser gave his indorsed notes for the purchase price, telling his indorsers that he would hold the property to secure them, but never delivered it to them. He pledged the same property to the seller to secure another debt, and it was put into the possession of and kept by an agent of the seller. The purchaser, without any agreement to do so, afterwards executed a bill of sale for the same property to his indorsers and delivered such bill of sale to one of them, by whom it was redelivered to him. Held, in a suit by the indorsers to foreclose a chattel mortgage executed two months after by the purchaser to them on said property, that the seller had a lien on said property superior to that of the indorsers.

Bill to foreclose chattel mortgage.

John H. Backes, for complainants. E. W. Arrowsmith, for defendant Barber.

BIRD, V. C. The question in this case is whether the complainants are entitled to a lien upon certain goods by virtue of a chattel mortgage or a bill of sale made previously, prior to the lien, by way of pledge, claimed by the defendant Barber. While the bill raises this question distinctly by allegations and by proper prayers, it also seeks a foreclosure of the chattel mortgage. There is a great deal in the case made by the complainants to awaken every favorable consideration in their behalf. Whether the case made fully sustains them will be seen hereafter. About the 1st day of November, 1884, the defendant Barber, one Egbert Towner, and Edward M. Fielder were copartners in lime, coal, moulding, and mill work at Asbury Park. On that day they entered into an agreement dissolving their copartnership; and, for the purpose of a complete settlement of all their affairs, Towner and Fielder agreed in writing to set over and convey unto the said Barber all their right, title, and interest in the stock, book-accounts, real estate, and all other property of the said firm, in trust, for the purpose of liquidating and settling the obligations and indebtedness of the said firm of Barber, Towner & Fielder. After very many provisions, settling and adjusting their mutual rights and credits, it was expressly understood and agreed that Towner should be the agent, and that Barber, as trustee, should for him take charge of and possession of the assets of the said concern at Asbury Park; and, to effectuate the work more v.13A.no.1-3

completely, a power of attorney was executed to Towner by Barber, as such trustee; and the said Barber agreed to sell to the said Fielder all the coal and lime stock of the said firm at inventory prices; and the said Fielder agreed to take all the mill work of said firm, and sell the same on commission; and then their agreement provided as follows: "And the said Fielder hereby agrees to guaranty all sales made by him of the said goods so taken on commission at the inventory prices of August 1, 1884; and if any part of the said commissioned mill work remains undisposed of on August 1, 1885, the said Fielder agrees to purchase the same at the price named in the August inventory, and to pay for the same immediately, or give good and sufficient security for the same; and should said Fielder not take said goods, then in that case he agrees that the said Barber shall have the right to sell the same at public sale; and the said Fielder agrees to pay the deficiency, if there should be any." At the close of the period named, to-wit, the 1st day of August, 1885, the said mill work on hand amounted in value, according to the inventory of August, 1884, to $3,750. Either about that time or before the middle of December,probably about the 1st day of November, 1885,-Fielder had paid to Barber the said $3,750, by promissory notes, except $750, which $750 balance was part of the transaction of the day last named, though perhaps not fully adjusted that day. That Fielder intended to comply with the terms and spirit of the agreement is beyond question. He immediately procured four notes to be executed by himself and indorsed by sundry persons,-the complainants and the defendants besides Barber and Towner,-and tendered them to Barber within a few days, in part payment of the amount due for said mill work under said agreement. After examination and inquiry as to the ability of the indorsers, Barber accepted them; and afterwards another note was accepted, leaving only the sum of $600 due, according to said agreement. Upon the 1st day of November, 1885, Barber went to Asbury Park, and had an interview with Fielder, which gives rise to this controversy. There is a little uncertainty in dates, but I think this is not really embarrassing, as the case stands in other respects. When these notes were indorsed by the several indorsers, in all 13, some of them at least, if not all, were informed as to the destination of the notes. They were told that the notes were to be used in payment of this mill work, which he, Fielder, had agreed to take from Barber. He also told them, or some of them, that he would hold the said mill work in trust for them and as a pledge, to secure them against all loss by virtue of their indorsements. Afterwards, and about the 2d day of November, 1885, Fielder executed to these indorsers a bill of sale of so much of the mill work as he then had on hand, he having in the meantime made disposition of all that he could in the market. Afterwards, and on the 16th day of January, 1886, the said Fielder made and delivered a mortgage upon all the said mill work, which was recorded on the 18th day of January, 1886. This mortgage seems to be perfect in its character, and effectual as a lien upon the goods enumerated therein, and in no way subject to impeachment or qualification, except to the extent claimed by the defendant Barber. Barber says that on the 5th day of November, 1885, he went to the place where Barber, Towner, and Fielder had formerly transacted their business, being the place where the said mill work was still stored, and there had an interview with Fielder. He says that Fielder was indebted to the concern in at least $1,750 on another transaction, independently of the mill; $1,000 of which was secured by a bond and mortgage, and that $750 of it was practically unsecured; and that this liability was a subject-matter of consideration between him and Fielder, upon that occasion; and that Fielder was then ready and prepared with a note to make a final settlement and disposition of the matters between them, under a written agreement respecting the mill work, but that he (Barber) refused to negotiate further respecting the mill work, and to surrender and release the same, unless Fielder would promise to give him a note for the $750 due on

the other account; and would also pledge to him the mill work remaining on hand; and that it should remain in the possession of said Towner, for Barber, in whose possession it had been and then was, until the said note should be paid. Barber swears to this very distinctly, and without qualification. He says that Fielder assented to it fully, and promised to make and execute a note for the $750. He says that they immediately went out of the building where they were, and met Mr. Towner; and that he repeated his understanding of what had taken place in the presence of Towner, and that Fielder again assented to what he had so repeated. This last statement of Barber's Towner corroborates. Fielder contradicts both Barber and Towner. He says that he told Mr. Barber that he had already pledged that stock to his indorsers to secure them. He says, however, that he told him, "If it was any satisfaction to allow the goods to remain over there I would have no objections to that, but I did not say I would let them lay there as collateral security for a claim on any note." He says also that afterwards, when he went to move the goods, that Towner said to him, "You have pledged these goods to us," but he says he denied to Towner having pledged them. And when asked by his counsel what he meant by saying, "If it would be any satisfaction, the goods might remain," he says, "Why, simply this, that I had no particular store-room for them, and I meant it more for a blind than anything else; just simply a blind, if you know what that is. I saw the game he was trying to play me, and had been using the lever for some time." And when asked what he meant by "blind" he said this: "Well, I meant that he was crowding me there, and thought he had the upper hand of me, by these goods being over there; and he thought he would force me into paying off that matter, and trying to make me believe I had not possession of those goods over there in that building; and he would not give up possession of them until I had made that ice-cream saloon note. That is just the size of it exactly." Fielder says he did not tell Barber how he had pledged the goods, but only to secure his indorsers.

Looking at this case, then, as between Barber and Fielder, it seems to me that, in equity, there was a binding contract. True, it was not specifically performed; but the terms were all distinctly agreed upon. Fielder promised to give his promissory note for $750, and pledged the mill work to Barber for the payment of that sum. The note was not executed and delivered; but that fact is not a bar in this court. The goods were, as I have said, actually pledged. Fielder in no sense denies this, except in the unworthy sense of consenting to the pledge as a "blind." In looking at the case as between Barber and the complainants, it seems to me that the former has the superior right. It is claimed by the complainants that Fielder told them that if they would indorse they should have the goods, or he would hold the goods for them, or would sell them and use the proceeds to pay the notes, or some such expression. But the goods were never delivered to them; in no particular was the law complied with in this regard. Fielder could not so hold and control, and at the same time give legal dominion to his indorsers; nor did he separate or identify the goods pledged, or keep any separate account, or do anything whatever which carries the contract so far as to give this court a hold to compel specific performance. And, besides, all subsequent transactions show the same thing; for immediately after the pledge to Barber, Fielder executed the bill of sale to his indorsers,-a proof of the incompleteness of what had before rested in uncertain promises. And this bill of sale was ineffectual, for it was executed by Fielder, not by virtue of any promise or agreement, but on his own motion, and delivered to one of the indorsers, and, as I understand the evidence, subject to the order of Fielder, to whom it was afterwards redelivered, and who held it for some time, or until he thought it was better to have it recorded. I think that this bill of sale, so controlled by Fielder, could not possibly give any of the complainants much of a hold, either in law or

equity. But more on this head. This instrument, although a bill of sale, purporting to confer the title absolute, was only a mortgage, and was not intended to be anything else. As such it was void as to Barber, because the requirements of the statute were not complied with. And these important particulars were recognized by the complainants, when they came to understand the situation, and the fact that Fielder had, in some way, been trying to secure them in preference to Barber. Then they immediately procured the chattel mortgage, on which this bill rests, and by virtue of which they hope to supplant Barber. This chattel mortgage the complainants demanded January 16, 1886, more than two months after Fielder had pledged the same goods to Barber, and a considerable time after Towner, in whose keeping and possession they were, had forbidden Fielder access to them. See Tool Co. v. Woodruff, 41 N. J. Eq. 336, 7 Atl. Rep. 125. Therefore I think that Barber, by virtue of his contract, by way of pledge, perfected by actual possession of the goods by Towner for him, acquired a lien which no subsequent dealings between Fielder and the complainants could impair; notwithstanding there may have been promises on the part of Fielder long before; since those promises, however distinct in themselves, were never so carried out as to bind third parties. Barber is entitled to be paid first, with costs.

WEART et al. v. CRUSER.

(Court of Errors and Appeals of New Jersey. March Term, 1887.) WILLS-CONSTRUCTION-NATURE OF ESTATE-ESTATES TAIL.

The clause in a will as follows: "I give and devise to my son M., his heirs and assigns by his present wife, S., forever, the farm," etc.,-creates an estate in special tail at common law, which by the New Jersey descent act, § 11, becomes an estate for life in M., with remainder to his children in fee.

Error to supreme court.

The action was in ejectment, and brought to recover an equal one-eighth part of a farm in the county of Somerset. The cause was tried in the Somerset circuit without a jury. Judgment was rendered in favor of the plaintiff, and the following reasons were assigned for the judgment by MAGIE, J.:

"The cause is of such importance as to justify and demand a statement of the views of the court on the legal question presented. That question respects the title which Matthias Van Dike Cruser, the father of the plaintiff, took under the will of Frederick Cruser, deceased. If the title was or became a fee-simple, then the defendant must succeed. If the title, under the statute of 13 Edw. I., (called the 'Statute of Entails,') was a fee-tail, then the plaintiff has a right to recover. The solution of the question depends on the construction of the following clause of the will of Frederick Cruser, deceased, viz.: 'I give and devise unto my son, Matthias Van Dike Cruser, his heirs and assigns by his present wife, Sally Ann, forever, the farm,' etc.

"The argument of defendant's counsel was mainly directed in the line of two opinions given by eminent counsel respecting the true construction of this clause. Both these opinions have been before me, and have received, as they deserve, most careful consideration. The opinion of Mr. BRADLEY, now associate justice of the supreme court of the United States, was given in 1866. He first takes the position that the clause in question contains no words of procreation, nor any equivalent words, and that its words do not necessarily imply the descendants of the devisee, for, he says, 'the heirs of M. V. D. C. by his present wife, Sally Ann, must be descended from her, but need tot necessarily be descended from him; for if he should die first, and his wife should marry his next cousin, and have issue, this issue might become the collateral heirs of M.' He then likens the estate devised to a qualified fee, which he described as being, in the language of Mr. Preston, an interest given in its first limitation to a man, and to certain of his heirs, and not extended to all

of them generally, nor confined to the issue of his body. He then concludes that the limitation of this clause, restricting the descent to such of the heirs of M. V. D. C. as should be descendants of Sally Ann, his wife, creates a source of descent different from that prescribed by our laws, and so is repugnant to the estate granted to M. V. D. C., and void. This conclusion seems to indicate that the estate which M. V. D. C. took was a fee-simple. The foundation of this conclusion is evidently the alleged lack of words of procreation, or words of equivalent meaning. His contention is that the words, heirs of M. V. D. C. by his present wife, Sally Ann,' do not necessarily import the issue of M. V. D. C. If this premise is incorrect, the conclusion must be rejected. I feel constrained to regard the words as entirely equivalent to 'heirs of the body of M. V. D. C. by his present wife, Sally Ann.' This instrument to be construed is a will. What we are to ascertain is the intent of the testator. No one who reads the clause will doubt that his intent was to limit the estate to the issue of M. V. D. C. by Sally Ann. The books are full of illustrations of precisely similar inferences of intent, drawn from the use of similar language. Thus, in Den v. Cox, 9 N. J. Law, 10, the phrase, his lawfully begotten heir,' was held to create an estate tail, and to be equivalent to ‘lawfully begotten heir of his body.' Yet the words did not necessarily import the issue of the devisee, and would have been entirely satisfied by a descent to any heir lawfully begotten, though not of his issue. The words heirs male,' in a devise, have always been held to import heirs of the body; and yet they would be entirely satisfied by any male heirs, lineal or collateral. Den v. Fogg, 3 N. J. Law, 819. These illustrations might be indefinitely multiplied. The present case is not without precedent, and the view I have taken is not without the support of authority. In Vernon v. Wright, 7 H. L. Cas. 49, a devise to 'the right heirs of my grandfather by Mary, his second wife, forever,' was held to create an estate tail. The words were said to comprehend words of procreation, and to be equivalent to heirs of the body of the grandfather, begotten on the body of the wife named. In Somers v. Pierson, 16 N. J. Law, 181, a devise to J. S., and to his heirs by his present wife, Anne,' was held to create an estate tail. The opinion was by FORD, J., and concurred in by HORNBLOWER, C. J. The judgment of the supreme court was afterwards reversed by the court of errors; but no opinion seems to have been delivered, and the reversal was in 1841. It is not necessary to infer that the reversal went on the ground that the construction given to this clause by the supreme court was erroneous. There was a subsequent clause in the will then under consideration which provided that the lands devised were, after the death of the widow, to whom they were given for life, to 'cede to J. S., his heirs and assigns, to all intents and purposes.' It was contended in the supreme court that this clause controlled and passed a fee-simple. We may fairly presume the same contention was made in the court of errors, and the reversal was probably on that ground. The case, therefore, is not without weight. Upon these grounds, I think the words of this clause are to be taken as including the idea of procreation, and as meaning ⚫heirs of the body' of M. V. D. C. by his wife, Sally Ann.

"The other opinion was by A. O. Zabriskie, afterwards chancellor. His conclusion is that M. V. D. C. took an estate in fee-simple. This conclusion is put upon the force of the word assigns,' which, he insists, indicates a clear intention to give to M. V. D. C. a power to sell. The remaining part of the devise, he thinks, would have its due effect if held to mean that, if M. V. D. C. should die without having sold the farm, his heirs by his wife, Sally Ann, would take as purchasers. He admits that, unless that construction be given, the clause will come literally within the eleventh section of the descent act, which provides for the disposition of estates which would be estates tail under the statute of entails. But he suggests that an estate tail special is not within that section, because, as he well observes, a literal application of the sections to such estates will invariably thwart the will of the testator. This sugges

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