Imagens das páginas

depth with a fourteen-feet entrance from called for the production of said duplicate boardwalk, the consideration to be a rental as signed by the defendant, and upon this of twelve hundred dollars per annum paya- point the record is as follows: ble yearly in advance, lease to date from Henry J. Bergman sworn for complainant. June 15th, 1901. The party of the first Direct examination. part to be put to no expense whatever in By Mr. Higbee: this matter, and security to be given for the Q. You are one of the officers of the Co. rent.

lumbia Real Estate Company? Columbia Real Estate Co., A. Yes, sir. By H. G. Bergman, Agt. Q. You are the Mr. Bergman who had ne-,

S. A. Charlton, gotiations with Mrs. Charlton, the comWitnesseth by Ida J. Atkinson.

plainant, are you not?

A. I am. Received, Atlantic City, May 7th, 1901, Q. Look at exhibit Cl. Did you ever of Mrs. S. A. Charlton one Hundred dollars see that before? on acc. of agreement for lease to be made to A. I think I have. Mrs. Charlton, for which details are to be Q. When and where? settled on.

A. About the latter part of May or the Columbia Real Estate Co. early part of June, at Mr. Bourgeois's office. By H. J. Bergman, Agt. Q. You know whether or not there was a

duplicate prepared of that? The vice chancellor found that these two A. Yes, sir. papers were signed and passed at the same Q. Who has the duplicate? time, and relate to the same transaction, A. I have it. and must be deemed parts of one instru- Q. Where is it now? ment. With this conclusion we agree.

A. Mr. Bourgeois has it. These papers, standing alone, would not Mr. Higbee: We ask for the producjustify a decree for specific performance. tion of the duplicate. By their terms it is stated that other de- Mr. Bourgeois: Here it is (producing tails are to be settled between the parties. it). Unless it was shown, therefore, by other Q. Paper produced by Mr. Bourgeois bewriting signed by the defendant, that such ing handed to counsel for complainant, he details had been agreed upon, the bill must shows it to the witness and asks: Who is be dismissed.

Orro G. Leonard, who has signed his name There was proof in the cause of negotia- as president? (Objected to as irrelevant.) tions between the parties looking to an The vice chancellor: What significance agreement as to the details of the proposed has this? lease, under the terms of the writing of Mr. Higbee: We want to show that this May 7, 1901; and a draft of a lease was of- lease in duplicate was executed by the Cofered in evidence, signed by the complain- lumbia Real Estate Company. ant, which it was alleged embraced all the The vice chancellor: What difference details under the said writings of May 7, does that make? 1901, as finally agreed upon in the negotia- Mr. Higbee: If the lease which was protions between the parties. It was not dis- duced to us, having been prepared by their puted that a draft of lease containing all attorney, and which we signed, and also the the details was prepared for the purpose of duplicate, which they acknowledge to be a carrying out the agreement contained in the duplicate, is signed by the defendant himwritings of May 7, 1901. It was admitted self, it certainly goes to show, it seems to that it was so prepared for the defendant me, that those were the terms agreed upon by his attorney. A duplicate of this de- by the parties. tailed lease was sent by the defendant to The vice chancellor: An undelivered, the complainant for her acceptance and sig. though signed, contract, remaining in the nature. That these details were accepted possession of the parties bound by it, has by the complainant is evidenced by her sig. no legal efficacy. It is only when the party nature to the paper sent to her, as it ap- obligated has passed it over to the other pears in evidence. To establish that these party that it becomes of any binding effect. details had also been agreed upon and ac. The paper marked "exhibit Cl” is in no way cepted by the defendant in compliance with obligatory upon Mrs. Charlton, because it the writings of May 7, 1901, the complain. remained in her possession. The paper here ant offered to prove that the defendant had produced on call by the attorney for designed a duplicate of paper in evidence fendant is no obligation whatever upon the signed by the complainant.

Columbia Real Estate Company, because To make this proof, the complainant it remained in the hands of the attorney

To pre

for the Columbia Real Estate Company. East, 272; Lee v. Cherry, 85 Tenn. 707, 4 The mere execution gave it no force or ef- Am. St. Rep. 800, 4 S. W. 835; Moss v. fect. It is its delivery that gives it force. Atkinson, 44 Cal. 3; Hollis v. Burgess, 37

In excluding this offer of proof, we think Kan, 487, 15 Pac. 536; Moore v. Mountthe learned vice chancellor erred. The castle, 61 Mo. 424; Barnett v. McCree, 76 writing was admissible in evidence. This Hun, 610, 27 N. Y. Supp. 820; Singleton r. offer was not made to prove a lease, but to Hill, 91 Wis. 51, 51 Am. St. Rep. 868, 64 N. prove by this writing, taken in connection W. 588. The reason for this is clear. The with the writings of May 7, 1901, that all memorandum is only necessary to evidence the terms or details of the proposed lease the contract, not to constitute it. As Tinhad been fully agreed upon by writings dal, Ch. J., says in Laythoarp v. Bryant, signed by the party to be charged therewith. 2 Bing. N. C. 744: “The contract is made It is clear, as the vice chancellor held, that before any signature thereof by the parthe duplicate signed by the defendant's ties.” The memorandum or note is only to president could not become a lease until it evidence what the contract was. was delivered; but it was none the less a

vent perjury as to such contracts, the statmemorandum in writing, signed by the de- ute declares that evidence of what the confendant, showing the details of the proposed tract was must be contained in some memlease as they had been agreed upon between orandum or note in writing signed by the the parties pursuant to the memoranda of party to be charged therewith. When the May 7, 1901. Our statute reads as follows: memorandum exists, and is legally given "That no action shall be brought ... (4) in testimony, it becomes evidence of the upon any contract or sale of lands, tene- contract claimed to have been made. The ments, or hereditaments, or any interest in memorandum is not the contract, but only or concerning them,

unless the

evidence of the contract. 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. It was evidence of an agreement upon the The signing by the complainant is imma- details mentioned in the writings of May 7, terial. Only the party to be charged there. 1901; and if such writings, when taken towith need sign. Reuss v. Picksley, L. R. gether, show a completed agreement for a 1 Exch. 342, 35 L. J. Exch. N. S. 218; 1 Ben- lease, they satisfy the requirements of the jamin, Sales, § 255, p. 279; Laythoarp v.

statute of frauds. This is not a question Bryant, 2 Bing. N. C. 744; Fry, Spec. Perf. of the admission of a signed deed in evi$ 346; Hatton v. Gray, 2 Ch. Cas. 164; dence to prove an oral agreement to convey. Green v. Richards, 23 N. J. Eq. 32; Rey. where no previous written memorandum of nolds v. O'Neil, 26 N. J. Eq. 223; Hauralty any part of the oral agreement exists. Nor v. Warren, 18 N. J. Eq. 124, 126, 90 Am. is it a question whether the delivery of an Dec. 613; Brooks v. Wentz, 61 N. J. Eq. undelivered deed, duly signed and acknowl474, 49 Atl. 147; Howland v. Bradley, 38 edged, said to have been drawn to carry N. J. Eq. 288; Stoutenburgh v. Tompkins, out an oral agreement to convey, will be 9 N. J. Eq. 332, 334. Nor is it necessary decreed by the court. The question here is that all the terms of the contract be agreed simply this: Will the court, in a suit for to at one time, nor written down at one specific performance of an oral agreement to time, nor on one piece of paper. If all make a lease, admit in evidence all the the papers, taken together, contain the paper writings signed by the parties to the whole bargain, they form such a memo- negotiation, even though some of the papers randum as will satisfy the statute. 1 Ben- be signed but undelivered instruments, in jamin, Sales, $ 220, p. 236; Johnson v. order to see, when all the papers are taken Buck, 35 N. J. L. 338, 343, 10 Am. Rep. together, whether they contain, the com243; Peck v. Vandemark, 99 N. Y. 30, 1 N. pleted terms for a lease as agreed, so that E. 41; Ide v. Leiser, 10 Mont. 5, 24 Am. a decree may be made? We think this St. Rep. 17, 24 Pac. 695; Raubitschek v. question must be answered in the affirmaBlank, 80 N. Y. 478; 29 Am. & Eng. Enc. tive. Judge Harlan, speaking for the SuLaw, p. 852, note 2 for cases. Nor does it preme Court of the United States in a case signify to whom the memorandum is ad- where a memorandum of the agreement of dressed. It may be to a third person, and sale was made, in which details were left yet be a good writing to satisfy the statute to be fixed, and a deed was executed and of frauds. Form is not important. Brown, sent for examination, as the duplicate lease Stat. Fr. $ 354; Bateman v. Phillips, 15 was in this case, says:

“Whatever may be




said as to the effect of this deed in passing Howard WATKINSON, Appt.,
title, if it was delivered only for purposes
of examination, or if the previous mem-

Adele Louise WATKINSON.
orandum of sale had been for any reason
defective, under the statute of

(........N. J.........) frauds, its recitals, coming as they do from

*1. The object of a bill of review is to the vendor, are competent for the purpose

procure the reversal, alteration, or of showing the precise locality of the prop

explanation of a decree in a former erty which the memorandum of sale was suit, and must rest on error in law upon the intended to embrace." Ryan v. United

face of the decree, fraud in procuring the States, 136 U. S. 68, 84, 34 L. ed. 447, 453, decree,

or newly discovered matter

which could not have been used before the 10 Sup. Ct. Rep. 913.

decree was made. Whether, where no signed memorandum

2. When it is sought to reverse a deof the oral agreement has been made, a

cree upon the discovery of some new signed, but undelivered, instrument, said

matter, leave of the court must first be obto have been drawn to carry out the oral tained by petition, supported by affidavit that agreement, will alone be resorted to to the evidence is not only new, but could not

have been discovered by reasonable diligence satisfy the statute, it is not necessary to

before the hearing. decide in this case. The courts differ upon

3. Although there is no express statuthat proposition. In the second edition of

tory limitation as to the filing of An. & Eng. Enc. Law, vol. 29, p. 855, title, bills of review, the analogous limitation Verbal agreements, notes 12 and 13, will be

of the right of appeal should govern, and a

bill of review cannot be filed after the lapse found a citation of all the authorities in the

of three years from the final decree, except several states affirming or denying that an

in case of new or newly discovered matter. undelivered executed deed will satisfy the | 4. The temporary absence from this statute. They are so variant that I shall state of one domiciled here will not be

held a change of residence, unless to the not attempt to reconcile them, and, indeed,

factum of residence elsewhere be added the it is not necessary to do so, upon the only

animus manendi; for a domicil, having once question necessary to be decided in this

been acquired, continues until a new one is case. If Brouon v. Brown, decided by this actually acquired animo et facto.

of the court, can be taken as an authority for an un. 5. Condonation


which the decree for divorce delivered, executed instrument not being a

based will not justify the granting of leave sufficient memorandum to satisfy the stat

to file a bill of review ; if intended to be inute, which is not decided, still that case is

terposed, it should have been pleaded and not in conflict with the view here expressed, proved in the original suit. as there was not there any written memorandum of the agreement to give the assign

(May 8, 1903.) ment there sought to be specifically enforced, unless it was permissible to gather A PPEAL by plaintiff from a decree of the it from the signed, but undelivered, as

Court of Chancery setting aside upon a signment in evidence, alone. 33 N. J. Eq. bill of review a decree of divorce. Reversed.

The facts are stated in the opinion. 650. There was error in the refusal to admit

Mr. John H. Backes, for appellant:

There is nothing to indicate appellant's the offer of the signed duplicate of the undelivered lease in evidence, and for this design to make New York his permanent

habitation,-his future home,-- from whence there must be a reversal.

he had then no present intention of departUpon all other questions raised in the

ing. case, we think the complainant had complied with the terms of the agreement on her N. J. L. 367; Kempson v. Kempson, 61 N. J.

State, Sharp, Prosecutor, v. Casper, 36 part, and that for none of these should Eq. 303, 48 Atl. 244, 63 N. J. Eq. 783, 58 specific performance of the agreement have L. R. A. 484, 92 Am. St. Rep. 682, 52 Ati. been denied her.

360, 625; Magowan v. Magowan, 57 N. J. I shall vote to reverse the decree, and to Eq. 322, 73 Am. St. Rep. 645, 42 Atl. 330: remit the record to the court of chancery, Streitwolf v. Streitwolf, 58 N. J. Eq. 563, for further proceedings in accordance here. 78 Am. St. Rep. 630, 41 Atl. 876, 43 Atl. 683. with.

The proceedings to review were begun

more than four years after notice of the diGummere, Ch. J., and Pitney, Bogert, Vroom, and Green, JJ., concur.

*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.


[ocr errors]

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

and void. The time prescribed for taking appeals The object of a bill of review, or a bill in from final decrees limits the period within the nature of a bill of review, is to procure which a bill to review may be filed. the reversal, alteration, or explanation of a

Clayton v. Clayton, 59 N. J. Eq. 316, 44 decree in a former suit. 2 Dan. Ch. Pl.& Pr. Atl. 840; Kempson v. Kempson, 16 N. J. Eq. 1576. If the decree has been signed and en330, 48 Atl. 244.

rolled, the practice is to file a bill of review; Delay in the application by one having if not, a bill in the nature of a bill of renotice of the fraud will, unless satisfactorily view. As stated by Judge Story in Dexter explained, operate to the prejudice of the v. Arnold, 5 Mason, 310, Fed. Cas. No. applicant, and, if unreasonably continued, 3,856: "This distinction between a bill of will bar his rights.

review and a bill in the nature of a bill of Bishop, Marr. & Div. ed. 1891, § 1153; review, though important in England, is not Nichols v. Nichols, 25 N. J. Eq. 60; Yorston felt in the practice of the courts of the v. Yorston, 32 N. J. Eq. 495; Casuell v. Cas- United States, and perhaps rarely in any well, 120 Ill. 377, 11 N. E. 342; Nicholson v. of the state courts of equity in the Union. Nicholson, 113 Ind. 131, 15 N. E. 223; I take it to be clear that in the courts of the Everett v. Everett, 60 Wis. 201, 18 N. W. United States all decrees as well as judg. 637; Perry v. Perry, 15 Phila. 242; Firmin ments are matters of record, and are deemed v. Tirmin, 16 Phila. 75.

to be enrolled as of the term in which they Messrs. James Steen and W. D. Tyn- are passed. So that the appropriate remdall, for appellee:

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

matters of fact, fraud in procuring former There is no limitation to a bill of review. decree, new facts, or upon some new matter

Fitton Macclesficid, 1 Vern. 287; which has been discovered after the decree, Edwards v. Carroll, 2 Bro. P. C. 98; Lytton and could not possibly have been used when v. Lytton, 4 Bro. Ch. 441; Smith v. Clay, 2 the decree was made. 2 Dan. Ch. Pl. & Pr. Ambl. 645.

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.

Ch. 489. Paul v. Willis, 69 Tex. 261, 7 S. W. 357; It seems to be the settled practice in eqPeople ex rel. Davis v. Sturtevant, 9 N. Y. uity, when it is sought to reverse a decree 263, 59 Am. Dec. 536; Wilcox v. Jackson, 13 signed and enrolled upon the discovery of Pet. 511, 10 L. ed. 270; Yates v. Yates, 13 some new matter, to first obtain the leave N. J. Eq. 280.

of the court to the filing of the bill, and

the usual practice is to make the applicaVroom, J., delivered the opinion of the tion by petition, supported by affidavit that court:

the evidence is not only new,' but could not The appeal in this cause is from a decree have been discovered by reasonable diliadvised by Vice Chancellor Pitney upon a bill gence before the hearing; and, as said by of review filed by Adele Louise Watkinson, Daniels, the court must be satisfied that the respondent, against Howard E. Watkin- the new matter has come to the knowledge son. The bill was filed to review and set of the applicant and his agents for the first aside a decree of divorce obtained by the said time since the period at which he could have Howard E. Watkinson in the court of chan- made use of it in the suit, and that it could cery of this state on December 11, 1896, and not with reasonable diligence have been disactually filed on December 17th following covered sooner, and that it is of such a char. The ground of the decree was adultery. acter that, if brought forward in the suit, it

The record in this case shows that on would have altered the judgment. 2 Dan. November 5, 1900, nearly four years after Ch. Pl. & Pr. 1563; Wilkinson v. Parish, 3 the signing of the above decree, the defend Paige, 653. ant in said cause and the respondent here Presumably, leave was given to the filing filed a petition in the court of chancery of the present bill of review, although the which was entitled a petition of defendant fact of the granting such leave does not to open decree, to which was annexed the appear in the record before us, nor is the affidavit of the defendant that the said pe- fact of such leave having been granted set tition was true in all respects, and on the out in the bill, as it should be where new 28th of November, 1900, she exhibited a bill matter is alleged upon which it is sought of review praying that the decree of divorce, to impeach the decree. Mitford, Ch. Pl. for the reasons in said bill set forth, ' 106.

At that time the posture of affairs was that he was living with her as husband and this: The appellant had filed his bill for di- wife, and assuring her that he had abandoned vorce against the respondent upon the said divorce proceedings, he was in fact prosground of adultery on June 13, 1896. An ecuting the same, and in fact in December order of publication against her as an ab- 1896, obtained a decree of divorce against sent defendant was made returnable August the complainant, and that she did not de31, 1896, and an affidavit made and filed by iend said cause because she believed that the the solicitor of the appellee that he had per- same had been abandoned; that said defendsonally delivered a copy of the usual printed ant was at the time of filing his said bill a notice in cases of divorce to the respondent resident of the state of New York; that afton the 9th day of July, 1896, at her place of er filing his said bill he condoned any fault abode in the city of New York. She did not or misconduct of complainant; and that his appear to the suit, and an order of reference conduct was a fraud upon the court, and was made to James S. Aitkin, special mas- made the decree null and void; and that the ter, and the hearing came on before him in complainant had but recently discovered the October of the last-named year, and on the frand practised upon her, and only recently 28th of October the master filed his report had heard that a decree of divorce had been advising that a decree of divorce should be granted in said cause. made for the crime of adultery, and on the The answer of the defendant denies spe11th of December, 1896, a decree of divorce cifically the allegations of the said bill of was duly made pursuant to said report. review, that he had condoned the offense of

The depositions thus taken before the the complainant, or had assured her that he master showed that the complainant was had abandoned the suit for divorce. He then a resident of the city of Trenton, in further denies the allegation that the dithis state, and that he had lived there for fif- vorce proceedings were a fraud upon the teen years then last past. The crime of court or the complainant, and that he was adultery charged in the bill was proved satis- at the time of the filing of his bill for di. factorily to the master, and he reported in vorce, or at any other time, a resident of favor of a divorce, which was granted. The the state of New York. petition before mentioned as having been filed After the hearing of witnesses, the vice to open the decree, or, if it may be considered, chancellor advised a decree in favor of refor leave to file a bill of review, alleges that spondent upon the ground that the comthe petitioner first positively heard that a plainant had no domicil or residence in the decree of divorce had been granted to her state of New Jersey at the time of the filing husband during the year 1900. She further of the bill which resulted in the decree atalleges that she and her husband removed tacked, or during the pendency of that suit, to New York city in November, 1895, and and that the adultery on the part of the lived there together until August, 1896, at wife upon which the decree therein was which time he secured certain letters, was based had been thoroughly condoned by the indignant at the contents thereof, and husband, and that the allegation of condonablamed the petitioner therefor, and left tion pending that suit and before the decree her; that in August or September, 1896, the therein was sustained by the weight of the petitioner signed some papers which she un evidence, and that the complainant's delay derstood to be in an action of divorce, but in asserting her right had not been such as she was without means or any friends or to bar her from relief. advisers, and her health broken down, In his opinion the learned vice chancellor and her condition and mind were such that sets out at some length what, to use his own she was unable to even consider or think of language, is termed a statement of the undisthe matter; that subsequently, in Septem- puted facts of the case, and adds that it ber or October, 1896, he husband returned would seem that the husband, the appellant to New York and cohabited with her pend- here, had no residence or domicil in New ing the action brought for divorce, and in Jersey at the time he was carrying on his formed petitioner that no suit was pending, suit here for divorce. If this could be conand in other ways imposed upon the peti- sidered an undisputed fact, or even a fair tioner and the court.

deduction from the proved facts, in this The bill of review filed in November of case, it would decide this case, for it would 1900 admits that the complainant therein have to be admitted that he committed there. in July or August, 1896, was informed of by a fraud upon the court; but in my opinthe institution of a divorce suit against her ion the testimony does not by any means esby her husband, and charges that subsequent- tablish this as a fact. The testimony of ly he returned to her, assured her that he the appellant before the master in this suit had abandoned his suit for divorce and co- for divorce, on October 9, 1896, disclosed that habited with her, and that notwithstanding he then resided in Trenton, New Jersey, and

« AnteriorContinuar »