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(106 A.).

difference, makes it apparent that the statute ran from the second sale, for prior thereto it could not be told whether there would be any

(90 N. J. Eq. 203)

GRASSMAN et al. v. BADGLEY et al. (No. 43/577.)

1919.)

(Syllabus by the Court.)

deficiency. His liability was only contingent, (Court of Chancery of New Jersey. March 6, and not fixed, between the first and second sales. The deficiency did not come into existence until the second sale. Defendant was not liable on it until then. What was sold to plaintiff by receiver was not a contingent liability arising July 2, 1910, but an ascertained one, which arose July 11, 1911, and which was ascertained and adjudged on August 8, 1911.

According to the view expressed by Vice Chancellor Pitney in Stoddard v. Van Bussum, 57 N. J. Eq. 34, 40 Atl. 29, the date from which the statute of limitations would run against a decree for deficiency in a foreclosure would be that on which the order was made ascertaining the deficiency. That in this case was August 8, 1911. It is true the resale took place July 11, 1911, but it could

not then be told that that sale would be confirmed, and it was not until that confirmation took place, August 8, 1911, that the deficiency becaine a sum certain, fixed, and definite one for which an action would lie. Before that it was in fieri.

The case of Chancellor v. Gummere, 40 N. J. Eq. 279, in this court, is not without appositeness. There was no forfeiture there because the property brought more at the resale than at the first one, and this is the possible situation pointed out above, namely, that the second sale may produce an increased price instead of a deficiency, in which case no claim would exist against the first purchaser because none had arisen. Now, in Chancellor v. Gummere this court, speaking by Mr. Justice Reed (at page 280), observed that the status is ascertained by the terms of the conditions under which the bid was tendered and accepted, that the terms reserved to the officer the right to treat the first sale as a nullity and expose the property for sale again in the event of failure on the part of the purchaser to complete the sale by the payment of his bid, and that the liability of the purchaser for his default is made to depend upon the result of the second sale, and if the outcome of such resale is such that the complainants would be in a position where they would receive a less sum than if the first sale has been consummated, the first purchaser must make good the deficit.

Of course, he could make it good only after it came into existence, and as no suit could be brought for it before it arose, nor before the second sale was confirmed, the statute would not run against it until that time. This must be obvious.

We think that the trial judge erred in granting the nonsuit, and the judgment entered thereon must therefore be reversed, and a venire de novo awarded.

1. PARTITION

TION.

39

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CHANCERY JURISDIC

The right of the Court of Chancery to partition property in this state does not depend upon statute.

2. PARTITION
EQUITY.

19

JURISDICTION

OF

ers, parties to the suit, derive title through a Where it appears that complainant and othwill made in 1836, probated in 1844, of lands, which are vacant salt meadow, not subject to be taken possession of in the ordinary method, and it not appearing that there are any adverse claimants, the parties having color of title, and there being nothing to prevent actual entry, the rights of the parties may be partitioned in equity.

3. PARTITION 63(3)-PROOF OF TITLE.

The general rule that, before a court of equity will decree partition, proof of title must be made which would prima facie entitle parties applying to a verdict in ejectment, does not apply in all cases.

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LANE, V. C. This is a partition sult in which the master has reported that it has not been proven before him that complainant has title to any part of the lands and premises referred to in the bill, and that the description of the property in the bill is too indefinite. The premises sought to be partitioned are vacant salt meadow lands in the city of Elizabeth described in the bill of complaint as a tract or parcel of land and premises

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

situate, lying, and being in the city of Eliza beth, county of Union, and state of New Jersey, being a tract of salt meadow containing six acres, more or less, and lying and being in the Elizabeth Town Great Meadows and adjoining meadows of Aaron Bryant and others. The history of the title is as follows: Samuel Badgley died in 1844, leaving a last will and testament duly probated, and by such will, which was made in 1836, he devised to his son Henry "the one equal one-half part of a lot of salt meadow I now own near Elizabeth Town containing in all about six acres," and to his son Jacob the other equal half part of a lot of salt meadow. By deed dated April 1, 1845, a daughter of Henry conveyed what is stated in the deed to be one undivided sixth part of several tracts of land in the townships of Springfield, New Providence, and Westfield, in the county of Essex, N. J., to Samuel S. Badgley, another child of Henry, and among the tracts conveyed is the sixth described as follows:

(3) south

to a stake standing as

a corner of John Henderson's meadow." The testimony is to the effect that there are no conveyances or devises affecting the lands in question out of or into either Price or Henderson. Elizabeth Rabig, 52 years of age, a daughter of Phebe Dillon, who was a daughter of Henry Badgley, testified that she had often heard her mother speak of the six-acre tract of meadow land in the Elizabeth Meadows of which her grandfather, Samuel Badgley, died seized. Joseph Brant, 76 years of age, the husband of one of the children of Mary Welshman, who was a daughter of Henry Badgley, testified that he had always known about the interest his wife had in the six-acre tract of salt meadow in the Elizabeth Town Great Meadows of which her great-grandfather, Samuel Badgley, died

seized.

Complainant Grassman, who is a civil engineer and surveyor, testified that he had examined the records, and that he knew that the sixth described tract in the deed of

"Being a piece of salt meadow adjoining Ja- 1845 was called the Badgley Meadow, and cob F. Badgley and others."

It is stated in the deed:

"All of which tracts of land are the same owned by Henry Badgley late of Springfield and of which he died seized and it is the intention hereby to convey all right, title and interest of the said Jeremiah and Lavinia, his wife, of, in and to the estate, lands, etc., whereof the said Henry Badgley died seized wheresoever the same may be as heirs at law of the said Henry Badgley, deceased."

There never was any salt meadow in the township of Springfield, and the lands referred to in the last deed must have been the salt meadow near Elizabeth Town referred to in the will of Samuel Badgley and by him devised to his sons, Jacob and Henry, in equal parts. Nothing further of record directly affecting the lands in question appears until deeds obtained by complainant from various of the heirs at law of Jacob and Henry during the last few years were recorded on October 30, 1918. No conveyance, grant, or devise of any description unto Samuel Badgley is shown. On September 28, 1825, one Clark conveyed to one Martin a tract of land adjoining the lands sought to be partitioned, and in the description of this adjoining tract is contained the following: "Thence along his line and Samuel Badgley's to the east," etc.-and the following: "Bounded * easterly by the meadows of William Dayton and Samuel Badgleys." By deed dated December 4, 1816, one Dayton conveyed to one Bryant lands adjoining in which conveyance the lands in question are referred to as those of William Price. By deed dated May 19, 1854, one Norris, executor, conveyed to one Wade lands adjoining in which the lands in question are referred to as follows: "Thence

that it is known that this meadow was cut by the Badgleys about 40 years ago, and that one of the oldest members of the family definitely located the tract which that family owned as being the tract under partition.

At the time the bill was filed the lands were unoccupied, and had been for many years. The only evidence of any act of possession was the testimony of Grassman that it was generally known that the Badgley family cut the land for salt hay about 40 years ago. The lands are incapable of continuous physical occupation in their present condition. The only act of ownership that complainant has performed has been to go over the land in a general way. They have not been fenced or posted. There is nothing to prevent complainant from entering upon the lands, so far as they may be entered upon, and from fencing or posting them. There is no one in possession and no one, so far as known, asserting an adverse title.

[1-3] The master based his determination upon section 1 of an Act Concerning Partition (3 C. S. of N. J. p. 3897), holding in effect that before there can be partition in this court complainant must prove his title. But the power of this court to decree partition is not limited by the statute. Section 44 of the act (3 C. S. of N. J. p. 3910) provides that the Court of Chancery shall have power, upon bill filed in that court for the partition of real estate, to decree the sale thereof, and the jurisdiction of said court shall continue as heretofore, anything in this act to the contrary notwithstanding. The jurisdiction of a court of equity to decree partition is not based upon statute. 17 American & English Encyc. of Law (1st Ed.) pp. 677, 679; 1 Story's Equity Jurisprudence (11th Ed.) p. 683 et seq., §§ 646 et seq.; Hay v. Estell, 18

(106 A.)

N. J. Eq. 251. The statutory method does | tional evidence as may be offered before him not deprive courts of equity of their inherent power. Gutheridge v. Gutheridge (Court of Appeals of Texas) 161 S. W. 892.

Unless the rights held by the parties to this litigation are partitionable in equity, it would appear that the parties are remediless. They cannot maintain ejectment or trespass. It is difficult to conceive how a suit to quiet title, in the present state of the law at least, can be maintained. Whatever difficulty the purchaser at the sale may have with respect to his title is a matter

with respect to the description of the property and with respect to what steps complainant may take to actually take possesThe rule has been generally expressed that, sion of the land, and he is then to report the even in case of a default, the court, before rights and interests of the respective pardecreeing partition, wil require evidence ties as he was directed to by the prior order which would prima facie entitle the party to of reference. His report is to be in line a verdict in ejectment. 17 American & Eng-with this opinion. lish Encyc. of Law (1st Ed.) 745, subd. "c"; 30 Cyc. title "Partition," p. 246, subd. "b," note 80. It will be observed, however, that the cases cited in support of the general proposition are cases from New York, and that these cases are based upon a construction of their statute. It is uniformly held in ejectment that a prima facie title is at least established by proof of a deed or deeds to one's self and possession in one's self or the grantor | with which this court has no concern at this or devisor, or of his predecessor in title. time. 9 Ruling Case Law, title "Ejectment," p. 843, § 15. See, also, note to Cottrell v. Pickering, 10 L. R. A. (N. S.) 404, and note to Dodge v. Irvington Land Co., 22 L. R. A. (N. S.) 1100. Complainant unquestionably has color of title. Sedgwick & Wait on Trial of Title to Land (2d Ed.) § 762.

[4] Partition, generally speaking, may be

I am quite convinced that the rights of the parties may be partitioned in equity.

(90 N. J. Eq. 197) SIMPSON et al. v. KLIPSTEIN. (No. 43/693.)

1919.)

had in equity of any class of property or of (Court of Chancery of New Jersey. March 5, any rights held in cotenancy. 30 Cyc. title "Partition," p. 153.

[5] Where lands sought to be partitioned are vacant, actual possession is not necessary if the applicant is the holder of the legal title. 21 American & English Encyc. of Law (2d Ed.) p. 1149, subtitle "Vacant Lands."

The reason for the rule requiring that an applicant for partition must show title, so far as courts of equity are concerned, is that the court will not make a futile decree, nor will it assist in embarrassing titles. A decree in partition does not settle the title nor does it bind others than those parties to the litigation or those holding under them or whom they represent in some manner. 20 Ruling Case Law, title "Partition," § 58, p. 787.

There is nothing to prevent complainant's immediate entry upon the lands so far as they may be entered upon. Under the circumstances I think he is entitled to partition in this court.

[6] The master also reports that the description is too indefinite. It is generally held that the description must be sufficiently particular to actually identify the property upon which the decree is intended to operate. 17 American & English Encyc. of Law (1st Ed.) p. 733; 30 Cyc. title "Partition," p. 218, subd.

10.

(Syllabus by the Court.)

APPEAL AND ERROR 1207(3)-REMITTITUR-
ENTRY OF DECREE-COUNSEL FEES.

is

Where a decree of the Court of Chancery reversed by the Court of Errors and Appeals, with costs both in the Court of Errors and the Court of Chancery, the Court of Chancery may, under the provisions of section 91 of the Act Concerning the Court of Chancery (1 C. S. of N. J. 1910, p. 445), on entering a decree

on the remittitur, award a reasonable counsel fee to the party prevailing in the Court of Errors and Appeals, for services rendered in the Court of Chancery, to be included in the taxed costs.

"To be officially reported."

Bill by Leslie N. Simpson and others by defendant for entry of decree on remittiagainst Ernest C. Klipstein. On application tur and for allowance of counsel fee. Application granted.

See, also, 105 Atl. 218.

Frederick Seymour, of New York City, and Borden D. Whiting, of Newark, for applicant. Griggs & Harding, of Paterson, and Judge Holmes, opposed.

LANE, V. C. The decree of this court grantThe description is indefinite. Counseling specific performance was reversed by the for exceptants agrees to have a survey and Court of Errors and Appeals. A motion is procure a more accurate description. now made in this court on behalf of defendant to enter a decree dismissing the bill, in accordance with the remittitur from the

The matter will be re-referred to the special master so that he may take such addi

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

I am of the opinion that a reasonable coun sel fee may be allowed to be included in the taxed costs in this case.

Court of Errors and Appeals, and at the | v. Sawyer (January Term, 1st Department, same time application is made for a counsel 1882) 26 Hun, 466. See City of New Orleans fee to be included in the taxed costs award- v. Whitney, Administrator, 138 U. S. 595, 11 ed defendant in this court. The decree in Sup. Ct. 428, 34 L. Ed. 1109; 15 Corpus Juris, this court granting specific performance §§ 650, 651, et seq., and notes. awarded costs in this court and directed that there should be included therein a counsel fee of $350; the allowance being made by virtue of the provisions of section 91 of an Act Concerning the Court of Chancery (1 C. S. of N. J. p. 445). The power of this court to include a counsel fee in the costs of a party unsuccessful here, but successful in the Court of Appeals, upon the entry of a decree upon remittitur, or otherwise, seems not to have been passed upon either by this court or by the Court of Errors and Appeals. The remittitur from the Court of Errors and Appeals reads as follows:

"Ordered, adjudged, and decreed that the decree of the Chancellor filed the 5th day of January, 1918, be, and the same is hereby, reversed, set aside, and for nothing holden, with costs both in this court and in the Court of Chancery to be paid by the respondents."

As to the amount: I allowed the complainants who prevailed in this court $350. Application is made by counsel for defendant for a considerably larger allowance. For reasons which I think will appear from a consideration of my opinion in this court, I consider that an allowance to counsel for defendant in this court of $300 would be adequate. This is as much of the expense of defendant of the litigation as I think complainants should be compelled to bear. The allowance, of course, is without prejudice to counsel for defendant charging his client whatever may be a reasonable fee.

(92 N. J. Law, 589) MOLONEY v. PUBLIC SERVICE RY. CO.

While the opinion filed in the Court of Errors and Appeals says nothing with respect to costs in this court, the opinion concluding, (Court of Errors and Appeals of New Jersey. "The decree below will be reversed, with costs," yet I conceive I am bound by the terms of the remittitur, which in precise

terms awards costs in this court.

The respondent is placed in precisely the same position, I think, so far as costs are concerned, as if he had originally prevailed in this court, in which event this court might have awarded a counsel fee under the provisions of the statute. Unless the court now has power to award a counsel fee, it would seem that a party who the Court of Errors and Appeals has held ought to have originally prevailed here would be unable to, in any event, take advantage of the statute, as it is unlikely that the Court of Errors and Appeals would, in the first instance, award a counsel fee for services performed in this court, the award and the amount of which is by the statute committed to the discretion of the chancellor. Although there are no decided cases upon the point in this state, yet I am advised that the Ordinary has in one or more cases awarded fees to counsel for services rendered in the Court of Errors and Appeals on appeal from the Prerogative Court as well as for services rendered in the Prerogative Court. It has been held in New York that the lower court may, upon a remittitur from the Court of Appeals carrying costs in the lower court, entertain a motion made by the prevailing party in the Court of Appeals for an additional allowance which, under our practice, would be a counsel fee. Jermain v. Lake Shore & M. S. Railroad Co. (January Term, 1st Department, 1884) 31 Hun, 558; Parrott

1. WITNESSES

March 6, 1919.)

387-CREDIBILITY-CROSS

EXAMINATION-CONTRADICTORY STATEMENTS. In action against street railway company having testified as to operation of car, may be for death of automobile passenger, motorman, cross-examined as to contradictory statement made by him to police officer at time of accident; such evidence going to his credibility. 2. WITNESSES 380(5)-CREDIBILITY-CONPARTY'S OWN

TRADICTORY
WITNESS.

STATEMENTS

Party who is "surprised" by adverse testimony of his own witness may be permitted to prove contradictory statements made by such witness for the purpose of discrediting him. 3. WITNESSES 387 - CREDIBILITY-CROSSEXAMINATION-CONTRADICTORY STATEMENTS

-COLLATERAL MATTERS.

A witness may be cross-examined as to contradictory statements, except where the fact brought out for purpose of contradiction and discredit is collateral or irrelevant to the issue. 4. TRIAL 207-INSTRUCTIONS - LIMITING EFFECT OF TESTIMONY.

Where testimony elicited on cross-examination for purpose of contradicting and discrediting witness is incompetent for purpose of establishing or negativing a fact or facts in issue, court upon request will limit the effect of such testimony to its strictly legitimate use.

Appeal from Circuit Court, Essex County. Suit by Thomas J. Moloney, administrator ad prosequendum of the estate of Aaron F. Burtt, deceased, against the Public Service Railway Company. Judgment for defendant,

(106 A.)

and plaintiff appeals. Reversed to the end which you say were inconsistent with his presthat venire de novo may issue.

Howe & Davis, of Orange, for appellant. Lefferts S. Hoffman and Leonard J. Tynan, both of Newark, for respondent.

WALKER, Ch. This suit was brought for damages for the death of plaintiff's decedent, who, while riding in an automobile, was run into by a trolley car of defendant and killed. From a judgment for defendant entered on the verdict of a jury plaintiff appeals to this

court.

The first objection is based upon the ruling of the trial judge as to the admissibility of certain questions asked of one of defendant's witnesses on cross-examination. The motorman had testified for the defendant as to the operation of the trolley car, etc., and on his cross-examination the following took place:

"Q. Well, after the accident you walked up the street with an officer, did you not? A. No,

sir; I was taken up in an automobile. "Q. Well, you went with an officer? A. Yes,

sir.

"Q. Was that Officer Curtin? A. Well, I think it was; I wouldn't say positively, but I think it was the same man.

ent testimony?

"Mr. Davis: Yes, sir; that immediately after the accident, and on Main street, Orange, in the vicinity of the accident, he made to Officer Curtin, of the Orange police force, a statement which, if true, would go towards contradicting the testimony now given by him on the stand. "The Court: Yes.

"Mr. MacSherry: That I object to.

"The Court: I sustain the objection, the ground of my ruling being that I think this is only an indirect way of proving statements made by the witness, who is a motorman, and I understand the established rule to be that such statements cannot be proved directly, and I think they should not be proved indirectly."

[1] These rulings, which were duly objected to, constitute reversible error. In Sperbeck v. Camden & S. Ry. Co., 64 Atl. 1012, the motorman and conductor of a trolley car were asked on cross-examination if on a certain day, in the presence of a certain person they said that certain things naming them, had caused the accident. This was permitted over objection, and they denied making the assertions. Then that person took the stand and swore that those witnesses said in his presence what they had just denied saying on cross-examination. This was objected to; and it was held that it was en

tirely clear that the questions asked of the motorman and conductor on cross-examination were competent, because, if it had ap

"Q. Did you not say to Officer Curtin"Mr. MacSherry: One moment. I want to object to anything that this witness said to anybody. I do not know what it is, but certainly he is not competent to bind this company. "Mr. Davis: I submit that upon the cross-peared that they had said what the question examination of this witness anything that would go to impeach the credibility of his testimony would be competent. Anything that he said in contradiction of his testimony now, at any former time, I submit, would be competent.

"The Court: I have never known a question of this kind to be answered.

"Mr. Davis: Not as binding upon the company, if your honor please, but as impeaching the credibility of his testimony. In other words if he testified here to a certain thing, and I asked him whether on a certain other occasion he did not make a statement to another witness different from the testimony that he is giving here, I submit that that is proper cross-examination, and it goes to impeach the credibility of his testimony.

"The Court (after argument): If you find any case that authorizes the question with respect to this class of employés, I shall follow it, of course; but at present I shall stand by what I understand to be the general rule applicable to employés, whose business it is to act, and not to speak, not to make statements. "Mr. Davis: May I frame the question and have your honor rule upon it?

"The Court: Certainly; ask your question. "Q. Mr. Haberstick, did you not say to"The Court: No; that will not do; you cannot ask a question that will bring before the jury any statement that you claim that the wit ness made.

* * *

"Mr. Davis: I desire, then, to ask the witness a question which would lay the foundation for me to present on rebuttal, testimony of one or more witnesses that

"The Court: As to statements made by him

included, it modified, and in a degree discredited, the stories told on their examination in chief. These two witnesses having denied that they had used the language, it was entirely competent to prove by another witness that they had used it, and so, by their statements outside had discredited the story told in court, and that this is one of the most familiar rules controlling the admission of evidence.

[2, 3] Even where a party is "surprised" by adverse testimony of his own witness he may be permitted to prove contradictory statements made by such witness for the purpose of discrediting him. See State v. D'Adame, 84 N. J. Law, 386, 394, 86 Atl. 414, Ann. Cas. 1914B, 1109. It is only when the fact brought out on cross-examination for the purpose of contradiction and discredit is collateral or irrelevant to the issue that contradiction is not allowed. Bullock v. State, 65 N. J. Law, 557, 575, 47 Atl. 62, 86 Am. St. Rep. 668; State v. Mor, 85 N. J. Law, 558, 562, 89 Atl. 755.

[4] The question here under consideration is not one of an attempt to bind the master by an unauthorized statement or admission of a servant concerning the happening of an event, but one going to the credibility of the servant's testimony by seeking to contradict it out of his own mouth. Protection from the effect of such contradictory testimony, as tending to establish or negative a fact or

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