Imagens das páginas

called for the production of said duplicate as signed by the defendant, and upon this

depth with a fourteen-feet entrance from
boardwalk, the consideration to be a rental
of twelve hundred dollars per annum paya-point the record is as follows:
ble yearly in advance, lease to date from
June 15th, 1901. The party of the first
part to be put to no expense whatever in
this matter, and security to be given for the

Henry J. Bergman sworn for complainant.
Direct examination.

Columbia Real Estate Co.,
By H. G. Bergman, Agt.
S. A. Charlton,

Witnesseth by Ida J. Atkinson.

Received, Atlantic City, May 7th, 1901, of Mrs. S. A. Charlton one Hundred dollars on acc. of agreement for lease to be made to Mrs. Charlton, for which details are to be settled on.

Columbia Real Estate Co.
By H. J. Bergman, Agt.

The vice chancellor found that these two papers were signed and passed at the same time, and relate to the same transaction, and must be deemed parts of one instrument. With this conclusion we agree.

These papers, standing alone, would not justify a decree for specific performance. By their terms it is stated that other details are to be settled between the parties. Unless it was shown, therefore, by other writing signed by the defendant, that such details had been agreed upon, the bill must be dismissed.

There was proof in the cause of negotiations between the parties looking to an agreement as to the details of the proposed lease, under the terms of the writing of May 7, 1901; and a draft of a lease was of fered in evidence, signed by the complainant, which it was alleged embraced all the details under the said writings of May 7, 1901, as finally agreed upon in the negotiations between the parties. It was not disputed that a draft of lease containing all the details was prepared for the purpose of carrying out the agreement contained in the writings of May 7, 1901. It was admitted that it was so prepared for the defendant by his attorney. A duplicate of this detailed lease was sent by the defendant to the complainant for her acceptance and signature. That these details were accepted by the complainant is evidenced by her signature to the paper sent to her, as it appears in evidence. To establish that these details had also been agreed upon and accepted by the defendant in compliance with the writings of May 7, 1901, the complainant offered to prove that the defendant had signed a duplicate of paper in evidence signed by the complainant.

By Mr. Higbee:

Q. You are one of the officers of the Columbia Real Estate Company?

A. Yes, sir.

Q. You are the Mr. Bergman who had negotiations with Mrs. Charlton, the complainant, are you not?

A. I am.

Q. Look at exhibit Cl. Did you ever see that before?

A. I think I have.

Q. When and where?

A. About the latter part of May or the
early part of June, at Mr. Bourgeois's office.
Q. You know whether or not there was a
duplicate prepared of that?
A. Yes, sir.

Q. Who has the duplicate?
A. I have it.

Q. Where is it now?

A. Mr. Bourgeois has it.

Mr. Higbee: We ask for the production of the duplicate.

Mr. Bourgeois: Here it is (producing


Q. Paper produced by Mr. Bourgeois being handed to counsel for complainant, he shows it to the witness and asks: Who is Orro G. Leonard, who has signed his name as president? (Objected to as irrelevant.) The vice chancellor: What significance has this?

Mr. Higbee: We want to show that this lease in duplicate was executed by the Columbia Real Estate Company.

The vice chancellor: What difference does that make?

Mr. Higbee: If the lease which was produced to us, having been prepared by their attorney, and which we signed, and also the auplicate, which they acknowledge to be a duplicate, is signed by the defendant himself, it certainly goes to show, it seems to me, that those were the terms agreed upon by the parties.

The vice chancellor: An undelivered, though signed, contract, remaining in the possession of the parties bound by it, has no legal efficacy. It is only when the party obligated has passed it over to the other party that it becomes of any binding effect. The paper marked "exhibit Cl" is in no way obligatory upon Mrs. Charlton, because it remained in her possession. The paper here produced on call by the attorney for defendant is no obligation whatever upon the Columbia Real Estate Company, because

To make this proof, the complainant it remained in the hands of the attorney

Am. St. Rep. 800, 4 S. W. 835; Moss v.
Atkinson, 44 Cal. 3; Hollis v. Burgess, 37
Kan. 487, 15 Pac. 536; Moore v. Mount-
castle, 61 Mo. 424; Barnett v. McCree, 76
Hun, 610, 27 N. Y. Supp. 820; Singleton v.
Hill, 91 Wis. 51, 51 Am. St. Rep. 868, 64 N.

W. 588. The reason for this is clear. The

for the Columbia Real Estate Company. | East, 272; Lee v. Cherry, 85 Tenn. 707, 4 The mere execution gave it no force or effect. It is its delivery that gives it force. In excluding this offer of proof, we think the learned vice chancellor erred. The writing was admissible in evidence. This offer was not made to prove a lease, but to prove by this writing, taken in connection with the writings of May 7, 1901, that all the terms or details of the proposed lease had been fully agreed upon by writings signed by the party to be charged therewith. It is clear, as the vice chancellor held, that the duplicate signed by the defendant's president could not become a lease until it was delivered; but it was none the less a

To pre

memorandum is only necessary to evidence
the contract, not to constitute it. As Tin-
dal, Ch. J., says in Laythoarp v. Bryant,
2 Bing. N. C. 744: "The contract is made
before any signature thereof by the par-
ties." The memorandum or note is only to
evidence what the contract was.
vent perjury as to such contracts, the stat-
ute declares that evidence of what the con-
tract was must be contained in some mem-
orandum or note in writing signed by the
party to be charged therewith. When the
memorandum exists, and is legally given
in testimony, it becomes evidence of the
contract claimed to have been made. The
memorandum is not the contract, but only

evidence of the contract.

memorandum in writing, signed by the defendant, showing the details of the proposed lease as they had been agreed upon between the parties pursuant to the memoranda of May 7, 1901. Our statute reads as follows: "That no action shall be brought . . . (4) upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, ... unless the agreement, upon which such action shall be We think that the complainant had the brought, or some memorandum or note right to put in evidence the signed duplithereof, shall be in writing and signed by cate of the detailed proposal for a written the party to be charged therewith, or some lease which she contended had been preother person thereunto by him or her law-pared by the defendant and signed by it. fully authorized." 2 Gen. Stat. § 5, p. 1603. The signing by the complainant is immaterial. Only the party to be charged therewith need sign. Reuss v. Picksley, L. R. 1 Exch. 342, 35 L. J. Exch. N. S. 218; 1 Benjamin, Sales, § 255, p. 279; Laythoarp v. Bryant, 2 Bing. N. C. 744; Fry, Spec. Perf. $ 346; Hatton v. Gray, 2 Ch. Cas. 164; Green v. Richards, 23 N. J. Eq. 32; Reynolds v. O'Neil, 26 N. J. Eq. 223; Hawralty v. Warren, 18 N. J. Eq. 124, 126, 90 Am. Dec. 613; Brooks v. Wentz, 61 N. J. Eq. 474, 49 Atl. 147; Howland v. Bradley, 38 N. J. Eq. 288; Stoutenburgh v. Tompkins, 9 N. J. Eq. 332, 334. Nor is it necessary that all the terms of the contract be agreed to at one time, nor written down at one time, nor on one piece of paper. If all the papers, taken together, contain the whole bargain, they form such a memorandum as will satisfy the statute. 1 Benjamin, Sales, § 220, p. 236; Johnson v. Buck, 35 N. J. L. 338, 343, 10 Am. Rep. 243; Peck v. Vandemark, 99 N. Y. 30, 1 N. E. 41; Ide v. Leiser, 10 Mont. 5, 24 Am. St. Rep. 17, 24 Pac. 695; Raubitschek v. Blank, 80 N. Y. 478; 29 Am. & Eng. Enc. Law, p. 852, note 2 for cases. Nor does it signify to whom the memorandum is addressed. It may be to a third person, and yet be a good writing to satisfy the statute of frauds. Form is not important. Brown, Stat. Fr. 354; Bateman v. Phillips, 15

It was evidence of an agreement upon the details mentioned in the writings of May 7, 1901; and if such writings, when taken together, show a completed agreement for a lease, they satisfy the requirements of the statute of frauds. This is not a question of the admission of a signed deed in evidence to prove an oral agreement to convey. where no previous written memorandum of any part of the oral agreement exists. Nor is it a question whether the delivery of an undelivered deed, duly signed and acknowledged, said to have been drawn to carry out an oral agreement to convey, will be decreed by the court. The question here is simply this: Will the court, in a suit for specific performance of an oral agreement to make a lease, admit in evidence all the paper writings signed by the parties to the negotiation, even though some of the papers be signed but undelivered instruments, in order to see, when all the papers are taken together, whether they contain, the completed terms for a lease as agreed, so that a decree may be made? We think this question must be answered in the affirmative. Judge Harlan, speaking for the Supreme Court of the United States in a case where a memorandum of the agreement of sale was made, in which details were left to be fixed, and a deed was executed and sent for examination, as the duplicate lease was in this case, says: "Whatever may be

said as to the effect of this deed in passing title, if it was delivered only for purposes of examination, or if the previous memorandum of sale had been for any reason defective, under the statute of frauds, its recitals, coming as they do from the vendor, are competent for the purpose of showing the precise locality of the property which the memorandum of sale was intended to embrace." Ryan v. United States, 136 U. S. 68, 84, 34 L. ed. 447, 453, 10 Sup. Ct. Rep. 913.

Whether, where no signed memorandum of the oral agreement has been made, a signed, but undelivered, instrument, said to have been drawn to carry out the oral agreement, will alone be resorted to to satisfy the statute, it is not necessary to decide in this case. The courts differ upon that proposition. In the second edition of Am. & Eng. Enc. Law, vol. 29, p. 855, title, Verbal agreements, notes 12 and 13, will be found a citation of all the authorities in the several states affirming or denying that an undelivered executed deed will satisfy the statute. They are so variant that I shall not attempt to reconcile them, and, indeed, it is not necessary to do so, upon the only question necessary to be decided in this case. If Brown v. Brown, decided by this court, can be taken as an authority for an undelivered, executed instrument not being a sufficient memorandum to satisfy the statute, which is not decided, still that case is not in conflict with the view here expressed, as there was not there any written memorandum of the agreement to give the assignment there sought to be specifically en

forced, unless it was permissible to gather

it from the signed, but undelivered, assignment in evidence, alone. 33 N. J. Eq.

[blocks in formation]
[merged small][merged small][merged small][merged small][ocr errors]

*1. The object of a bill of review is to procure the reversal, alteration, or explanation of a decree in a former suit, and must rest on error in law upon the face of the decree, fraud in procuring the decree, new or newly discovered matter which could not have been used before the decree was made.

2. When it is sought to reverse a decree upon the discovery of some new matter, leave of the court must first be obtained by petition, supported by affidavit that the evidence is not only new, but could not have been discovered by reasonable diligence before the hearing.

3. Although there is no express statutory limitation as to the filing of bills of review, the analogous limitation of the right of appeal should govern, and a bill of review cannot be filed after the lapse of three years from the final decree, except in case of new or newly discovered matter.. 4. The temporary absence from this

state of one domiciled here will not be held a change of residence, unless to the factum of residence elsewhere be added the animus manendi; for a domicil, having once been acquired, continues until a new one is actually acquired animo et facto.

5. Condonation of the adultery on which the decree for divorce was based will not justify the granting of leave to file a bill of review; if intended to be interposed, it should have been pleaded and proved in the original suit.

[blocks in formation]

N. J. L. 367; Kempson v.
State, Sharp, Prosecutor, v. Casper, 36
Kempson, 61 N. J.
Eq. 303, 48 Atl. 244, 63 N. J. Eq. 783, 58
L. R. A. 484, 92 Am. St. Rep. 682, 52 Atl.
360, 625; Magowan v. Magowan, 57 N. J.
Eq. 322, 73 Am. St. Rep. 645, 42 Atl. 330:
Streitwolf v. Streitwolf, 58 N. J. Eq. 563,
78 Am. St. Rep. 630, 41 Atl. 876, 43 Atl. 683.

The proceedings to review were begun more than four years after notice of the di

*Headnotes by VROOM, J.

NOTE. As to effect of delay in applying for Dixon, Garrison, Swayze, and Gray, bill of review, see also, in this series, Priestley's

JJ., dissent.

Appeal, 4 L. R. A. 503.

vorce proceedings was served upon the com- be set aside and declared to be fraudulent plainant. and void.

The time prescribed for taking appeals from final decrees limits the period within which a bill to review may be filed.

Clayton v. Clayton, 59 N. J. Eq. 316, 44 Atl. 840; Kempson v. Kempson, 16 N. J. Eq. 330, 48 Atl. 244.

Delay in the application by one having notice of the fraud will, unless satisfactorily explained, operate to the prejudice of the applicant, and, if unreasonably continued, will bar his rights.

Bishop, Marr. & Div. ed. 1891, § 1153; Nichols v. Nichols, 25 N. J. Eq. 60; Yorston v. Yorston, 32 N. J. Eq. 495; Caswell v. Caswell, 120 Ill. 377, 11 N. E. 342; Nicholson v. Nicholson, 113 Ind. 131, 15 N. E. 223; Everett v. Everett, 60 Wis. 201, 18 N. W. 637; Perry v. Perry, 15 Phila. 242; Firmin v. Firmin, 16 Phila. 75.

The object of a bill of review, or a bill in the nature of a bill of review, is to procure the reversal, alteration, or explanation of a decree in a former suit. 2 Dan. Ch. Pl.& Pr. 1576. If the decree has been signed and enrolled, the practice is to file a bill of review; if not, a bill in the nature of a bill of review. As stated by Judge Story in Dexter v. Arnold, 5 Mason, 310, Fed. Cas. No. 3,856: "This distinction between a bill of review and a bill in the nature of a bill of review, though important in England, is not felt in the practice of the courts of the United States, and perhaps rarely in any of the state courts of equity in the Union. I take it to be clear that in the courts of the United States all decrees as well as judgments are matters of record, and are deemed to be enrolled as of the term in which they

edy is by a bill of review." See also Wiser

Messrs. James Steen and W. D. Tyn- are passed. So that the appropriate remdall, for appellee: Condonation destroyed the right to di- v. Blachly, 2 Johns. Ch. 489. Such a bill


must rest on error in law upon the face of

Clayton v. Clayton, 59 N. J. Eq. 310, 44 the decree, without further examination of Atl. 840.

There is no limitation to a bill of review. Fitton v. Macclesfield, 1 Vern. 287; Edwards v. Carroll, 2 Bro. P. C. 98; Lytton v. Lytton, 4 Bro. Ch. 441; Smith v. Clay, 2 Ambl. 645.

matters of fact, fraud in procuring former decree, new facts, or upon some new matter which has been discovered after the decree, and could not possibly have been used when the decree was made. 2 Dan. Ch. Pl. & Pr. 1576; Mitford, Ch. Pl. 101; Taylor v. Sharp, The decree is not merely voidable, but 3 P. Wms. 371; Wiser v. Blachly, 2 Johns. void, for want of jurisdiction.

Paul v. Willis, 69 Tex. 261, 7 S. W. 357; People ex rel. Davis v. Sturtevant, 9 N. Y. 263, 59 Am. Dec. 536; Wilcox v. Jackson, 13 Pet. 511, 10 L. ed. 270; Yates v. Yates, 13 N. J. Eq. 280.

Ch. 489.

It seems to be the settled practice in equity, when it is sought to reverse a decree signed and enrolled upon the discovery of some new matter, to first obtain the leave of the court to the filing of the bill, and the usual practice is to make the applica

Vroom, J., delivered the opinion of the tion by petition, supported by affidavit that


The appeal in this cause is from a decree advised by Vice Chancellor Pitney upon a bill of review filed by Adele Louise Watkinson, the respondent, against Howard E. Watkin


The bill was filed to review and set aside a decree of divorce obtained by the said Howard E. Watkinson in the court of chancery of this state on December 11, 1896, and actually filed on December 17th following. The ground of the decree was adultery.

The record in this case shows that on November 5, 1900, nearly four years after the signing of the above decree, the defendant in said cause and the respondent here filed a petition in the court of chancery which was entitled a petition of defendant to open decree, to which was annexed the affidavit of the defendant that the said petition was true in all respects, and on the 28th of November, 1900, she exhibited a bill of review praying that the decree of divorce, for the reasons in said bill set forth,

the evidence is not only new, but could not have been discovered by reasonable diligence before the hearing; and, as said by Daniels, the court must be satisfied that the new matter has come to the knowledge of the applicant and his agents for the first time since the period at which he could have made use of it in the suit, and that it could not with reasonable diligence have been discovered sooner, and that it is of such a character that, if brought forward in the suit, it would have altered the judgment. 2 Dan. Ch. Pl. & Pr. 1563; Wilkinson v. Parish, 3 Paige, 653.

Presumably, leave was given to the filing of the present bill of review, although the fact of the granting such leave does not appear in the record before us, nor is the fact of such leave having been granted set out in the bill, as it should be where new matter is alleged upon which it is sought to impeach the decree. Mitford, Ch. Pl. 106.

At that time the posture of affairs was this: The appellant had filed his bill for divorce against the respondent upon the ground of adultery on June 13, 1896. An order of publication against her as an absent defendant was made returnable August 31, 1896, and an affidavit made and filed by the solicitor of the appellee that he had personally delivered a copy of the usual printed notice in cases of divorce to the respondent on the 9th day of July, 1896, at her place of abode in the city of New York. She did not appear to the suit, and an order of reference was made to James S. Aitkin, special master, and the hearing came on before him in October of the last-named year, and on the 28th of October the master filed his report advising that a decree of divorce should be made for the crime of adultery, and on the 11th of December, 1896, a decree of divorce was duly made pursuant to said report.

The depositions thus taken before the master showed that the complainant was then a resident of the city of Trenton, in this state, and that he had lived there for fifteen years then last past. The crime of adultery charged in the bill was proved satisfactorily to the master, and he reported in favor of a divorce, which was granted. The petition before mentioned as having been filed to open the decree, or, if it may be considered, for leave to file a bill of review, alleges that the petitioner first positively heard that a decree of divorce had been granted to her husband during the year 1900. She further alleges that she and her husband removed to New York city in November, 1895, and lived there together until August, 1896, at which time he secured certain letters, was indignant at the contents thereof, and blamed the petitioner therefor, and left her; that in August or September, 1896, the petitioner signed some papers which she understood to be in an action of divorce, but she was without means or any friends or advisers, and her health broken down, and her condition and mind were such that she was unable to even consider or think of the matter; that subsequently, in September or October, 1896, her husband returned to New York and cohabited with her pending the action brought for divorce, and informed petitioner that no suit was pending, and in other ways imposed upon the petitioner and the court.

The bill of review filed in November of 1900 admits that the complainant therein in July or August, 1896, was informed of the institution of a divorce suit against her by her husband, and charges that subsequently he returned to her, assured her that he had abandoned his suit for divorce and cohabited with her, and that notwithstanding

that he was living with her as husband and wife, and assuring her that he had abandoned said divorce proceedings, he was in fact prosecuting the same, and in fact in December 1896, obtained a decree of divorce against the complainant, and that she did not defend said cause because she believed that the same had been abandoned; that said defendant was at the time of filing his said bill a resident of the state of New York; that after filing his said bill he condoned any fault or misconduct of complainant; and that his conduct was a fraud upon the court, and made the decree null and void; and that the complainant had but recently discovered the fraud practised upon her, and only recently had heard that a decree of divorce had been granted in said cause.

The answer of the defendant denies specifically the allegations of the said bill of review, that he had condoned the offense of the complainant, or had assured her that he had abandoned the suit for divorce. He further denies the allegation that the divorce proceedings were a fraud upon the court or the complainant, and that he was at the time of the filing of his bill for divorce, or at any other time, a resident of the state of New York.

After the hearing of witnesses, the vice chancellor advised a decree in favor of respondent upon the ground that the complainant had no domicil or residence in the state of New Jersey at the time of the filing of the bill which resulted in the decree attacked, or during the pendency of that suit, and that the adultery on the part of the wife upon which the decree therein was based had been thoroughly condoned by the husband, and that the allegation of condonation pending that suit and before the decree therein was sustained by the weight of the evidence, and that the complainant's delay in asserting her right had not been such as to bar her from relief.

In his opinion the learned vice chancellor sets out at some length what, to use his own language, is termed a statement of the undisputed facts of the case, and adds that it would seem that the husband, the appellant here, had no residence or domicil in New Jersey at the time he was carrying on his suit here for divorce. If this could be considered an undisputed fact, or even a fair deduction from the proved facts, in this case, it would decide this case, for it would have to be admitted that he committed thereby a fraud upon the court; but in my opinion the testimony does not by any means establish this as a fact. The testimony of the appellant before the master in this suit for divorce, on October 9, 1896, disclosed that he then resided in Trenton, New Jersey, and

« AnteriorContinuar »