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depth with a fourteen-feet entrance from boardwalk, the consideration to be a rental of twelve hundred dollars per annum payable 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 rent.
Columbia Real Estate Co.,
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.
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.
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
"The contract is made
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 Kan. 487, 15 Pac. 536; Moore v. Mountcastle, 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 memorandum is only necessary to evidence the contract, not to constitute it. As Tindal, Ch. J., says in Laythoarp v. Bryant, 2 Bing. N. C. 744: before any signature thereof by the parties." The memorandum or note is only to evidence what the contract was. vent perjury as to such contracts, the statute declares that evidence of what the contract was must be contained in some memorandum 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.
We think that the complainant had the right to put in evidence the signed duplicate of the detailed proposal for a written lease which she contended had been pre
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 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 brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other 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; Hawralty 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 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.
There was error in the refusal to admit the offer of the signed duplicate of the undelivered lease in evidence, and for this
there must be a reversal.
Upon all other questions raised in the case, we think the complainant had complied with the terms of the agreement on her part, and that for none of these should specific performance of the agreement have
been denied her.
I shall vote to reverse the decree, and to remit the record to the court of chancery, for further proceedings in accordance herewith.
Gummere, Ch. J., and Pitney, Bogert, Vroom, and Green, JJ., concur.
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.
(May 8, 1905.)
PPEAL by plaintiff from a decree of the Court of Chancery setting aside upon a bill of review a decree of divorce. Reversed. The facts are stated in the opinion. Mr. John H. Backes, for appellant: There is nothing to indicate appellant's design to make New York his permanent habitation, his future home,-from whence he had then no present intention of departing.
State, Sharp, Prosecutor, v. Casper, 36 N. J. L. 367; Kempson v. 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.
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; Firmiŋments are matters of record, and are deemed v. Firmin, 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 v. Blachly, 2 Johns. Ch. 489. Such a bill must rest on error in law upon the face of the decree, without further examination of 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, 3 P. Wms. 371; Wiser v. Blachly, 2 Johns. Ch. 489.
Condonation destroyed the right to di
Clayton v. Clayton, 59 N. J. Eq. 310, 44
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.
The decree is not merely voidable, but 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.
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. WatkinThe 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 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 judg
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 court: 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.
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,
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.
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.
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
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