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prior unrecorded assignment, was not a bona Lindsley to him about $625) and to the fide purchaser without notice.
Manalapan Company, about $800 or $900. [Ed. Note.--For other cases. See Mortgages, Neither the bond nor mortgage were deliverCent. Dig. $8 633-655; Dec. Dig. § 244.*]
ed to MacLear with the assignment. Mac3. MORTGAGES (8 244*) - ASSIGNMENTS RIGHTS OF ASSIGNEE.
Lear's assignment was recorded nearly two Where a mortgagee assigned the mortgage years later, May 19, 1909, but the previous to D., and thereafter made a subsequent as assignment to Dey & Sutphen was not recordceeded to the title and rights
of D., though he ed until January 21, 1910, shortly after the paid only a small sum for the assignment, and assignment of the mortgage to complainthe subsequent assignee was not entitled to re-ants. The power of attorney from Walter deem on payment of such sum.
P. Lindsley to Morris B. Lindsley was re[Ed. Note.-For other cases, see Mortgages, corded still later, May 16, 1910. The asCent. Dig. $8 633-655; Dec. Dig. § 244.*]
signment to MacLear was indexed in the Suit by William C. Clift and others clerk's index book under the name of Morris against Elizabeth Scheutz and others. Heard B. Lindsley, and not of Walter P. Lindsley, on bill, answer, replication, and proofs. De and complainants, who had before their purcree in accordance with the opinion.
chase of the mortgage had the indexes ex· King & Vogt, of Morristown, for com- amined, had no actual notice of the Macplainants. F. W. Fort, of Newark, for de- Lear assignment. fendant MacLear.
 Complainants, as assignees of Dey &
Sutphen, are entitled to stand upon the rights EMERY, V. C. Elizabeth Scheutz and of the latter to the bond and mortgage in husband gave to Walter P. Lindsley a mort question. The mortgage and assignment gage on lands in Sussex county, dated July convey an interest in lands, both legal and 12, 1904, for $1,500, payable in one year, with equitable, and the assignment to Dey & Sutinterest. On October 9, 1905, Walter P. Lind- phen, being prior in time to the assignment sley assigned this mortgage to Dey & Sutphen to MacLear, must prevail against it, unless as collateral security for payments to be the general rule as to priority is affected by come due on a building contract between the recording acts. Jenkinson v. N. Y. Fi. Dey & Sutphen and the O. K. Building Com- nance Co., 79 N. J. Eq. 247, 258, 82 Atl. 36, pany in which Walter P. Lindsley was in-41 (1911, Emery, V. C.). terested. The bond and mortgage were de-  The recording acts provide for the relivered to the assignees with the assignment. cording of assignments of mortgagles and The amount which afterwards became due other instruments (“Conveyances," Rev. of on the contract to Dey & Sutphen was 1898, § 21 [2 Comp. St. 1910, p. 1541), and $3,500, and on January 12, 1910, Dey & Sut- Id. $ 53 [2 Comp. St. 1910, p. 1552]), and that phen assigned the bond and mortgage, as the record “shall be notice to all subsequent well as the contract and the debt due there judgment creditors, purchasers and mortgaon, to the complainants Clift and Best. The gees of the execution and contents of the intwo assignments of the mortgage were re- strument.” As to the effect of not recording corded on January 21, 1910.
the assignment or other instrument, it is A writ of attachment at the suit of the provided (Id. $ 54) that it shall "be void and Manalapan Light Company was issued of no effect against subsequent judgment against Walter P. Lindsley subsequent to the creditors without notice, and against all assignment to Dey & Sutphen, and on June subsequent bona fide purchasers and mort19, 1906, the sheriff under this writ attached gagees
not having notice there in the hands of Dey & Sutphen all the right, of, whose deed or mortgage shall have been title, and interest of the defendant Walter P. first duly recorded." The previous act reLindsley in this mortgage, and made return lating to mortgages (Rev. of 1874 [3 Comp. that he attached such interest on the mort. St. 1910, p. 3407, etc.]) had provided gage "in the hands of Dey & Sutphen, but only that the record of assignment of not assigned to them." The authority for mortgages should be “notice to all coninserting this statement "but not assigned cerned" that the mortgage was assigned to them” in the return has not been shown, (section 32, 3 Comp. St. 1910, p. 3418, and and, so far as Dey & Sutphen are concerned, section 34, 3 Comp. St. 1910, p. 3419); that the inclusion of this statement in the sher-payments made to the assignor in good faith, iff's return has no effect in this case. Mr. without actual notice and releases to persons MacLear was the attorney for the company not having actual notice, should be valid. in this attachment suit, and more than a These sections of the mortgage act revision year later, on August 23, 1907, he received do not, as do the conveyance acts, expressly an assignment of this bond and mortgage make the assignments invalid if unrecorded, from Walter P. Lindsley, executed in his against any persons, but save only the rights name by Morris B. Lindsley, his attorney of the mortgagor on payments or releasers in fact, under a power of attorney referred of the mortgaged lands. to in the assignment. This assignment was Section 54 of the conveyance act applies to made to MacLear to secure money owing by every deed or instrument set forth in the twenty-first section of the act, which in- 12. TAXATION ($ 701*)—REDEMPTION FROM TAX cludes assignments of mortgages, and the
*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexeo *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
SALE-PROCEEDING TO BAR RIGHT TO RE
DEEM. question therefore is whether MacLear, who
Where a purchaser of land at a tax sale, was a subsequent purchaser of the mortgage. after giving notice to all persons interested was a bona fide purchaser for a valuable to redeem within 60 days, pursuant to P. L. consideration, not having notice of the prior 1903, p. 432, $ 59, on an application by a party assignment to Dey & Sutphen. In my judg- quested a delay beyond the 60 days for the
interested within such period to redeem, rement MacLear cannot be considered a bona purpose of taking up the matter, and thereby fide purchaser for a valuable consideration induced such party not to attempt to redeem without notice.
within the statutory period, the purchaser was
estopped, as against such party, from using The fact that the assignor did not have such notice as the basis of a statutory foreclothe bond and mortgage to deliver with the sure of the right to redeem, and, to avail himassignment, while it might not, as between self of the statutory remedy, was bound to the assignor and the assignee, prevent the give a new notice.
[Ed. Note.-For other cases, see Taxation, passing of such title thereto as the assignor Cent. Dig. $$ 1407, 1409-1411; Dec. Dig. g had, was a notice that they were or might be 701.*] held by some one other than the assignor. 3. TAXATION ($ 722*)-TAX SALES-SUITS TO Kamena v. Huelbig, 27 N. J. Eq. 78, 80 (Za- REDEEM–MATTERS DETERMINABLE. briskie, Ch. 1872). And actual notice to
A suit to 'redeem from a tax sale proceeds MacLear that Dey & Sutphen held the pos- can acquire an absolute title, and the valid
on the assumption that the defendant has or session at the time of the attachment is ity of his title under the sale cannot be atproved. He was the attorney for the compa- tacked. ny who attached the bond and mortgage as Cent. Dig. ss 7449-1453 ; Dec. Dig. § 722.*]
[Ed. Note.-For other cases, see Taxation, in Dey & Sutphen's possession, and subsequently took his assignment of the mortgage Suit by William C. Clift and others against to secure this company's debt. No circum- James Frenche. Decree for complainant. stances have appeared which deprive these facts of their effect as notice.
King & Vogt, of Morristown, for complain No acts of Dey & Sutphen have been ants. E. A. Rayner, of Newark, for defend
ant. proved which disentitle them to stand upon their assignment and possession of the bond and mortgage as prior to MacLear's assign
EMERY, V. C. This is a bill by a mortment, and the complainants have succeeded gagee to redeem lands sold for nonpayment to 'the title and rights to Dey & Sutphen. of taxes. The lands were sold for 30 years, The fact that complainants paid only a small and the purchaser claims that the right of sum for the assignment does not create any redemption has been cut off by proceedings equity in favor of the subsequent assignee, taken under the “act for the assessment and and the claim of counsel that the subsequent collection of taxes.” P. L. 1903, c. 208, 59, assignee is entitled to redeem on payment p. 432. This section provides two methods of this sum cannot be allowed.
for barring or foreclosing the right of reA decree that the assignment to the com- demption, after the period of redemption plainants is prior to that of the defendant (two years after the sale) has expired. The MacLear, and that as between them they are first is by an ex parte proceeding entirely entitled to be first paid out of the proceeds of within the control of the purchaser, and is sale under foreclosure, will be advised.
by his giving written notice to all persons interested in the land of their right to re
deem, and that, unless they do so witnin (83 N. J. Eq. 437)
60 days after the service of the notice, their CLIFT et al. v. FRENCHE.
right to redeem will be barred. After this (Court of Chancery of New Jersey. July 23, time (60 days) has expired without redemp1914.)
tion, the purchaser may annex the notice 1. TAXATION (8 701*)-REDEMPTION FROM Tax and affidavit of service to the certificate of
SALE-PROCEEDING TO BAR RIGHT TO RE- sale, together with an affidavit that the sale DEEM.
Under P. L. 1903, p. 432, § 59, providing has not been redeemed, and record and file that the purchaser of land at a tax sale may the same therewith in the office of the county give written notice to all persons interested in clerk or register. By the statute “the said the land of their right to redeem, and that notice and affidavits and the record thereof unless they do so within two years after the sale, if the notice is served more than 60 days shall be presumptive evidence of the service before the end of the term, or otherwise with and facts therein stated.” Section 56 proin 60 days after the service of the notice, their vides for the recording of the certificate of right of redemption will be barred, and that, if sale with these notices and affidavits annexthere shall be no redemption within such term of two years or within the time limited by the ed, and also that the certificate of sale shall notice, the right of redemption shall be barred, be presumptive evidence in all courts of the to bar the right of redemption the statute must title of the purchaser. The second method of be strictly followed.
[Ed. Note.--For other cases, see Taxation. barring the right of redemption given by Cent. Dig. 88 1407, 1409-1411; Dec. Dig. 3 section 59 is by a bill to foreclose, and this 701.*]
method may be taken whether the 60 days'
notice has been given or not, and, where as had been a great deal more than the taxes. bill is filed, the right to redeem continues He further stated that the right to redeem until barred by the decree of sale of the the property expired May 24th, but he had court of chancery.
favored Mr. Best by allowing him some extra As to the expiration of the right to redeem, time “to continue his negotiations for his the fifty-seventh section provides that per- own individual interest,” and then continues: sons interested "may redeem the same at "He has had four months and has done nothany time within two years from the date of ing and there is nothing can be done now exsale, or at any time thereafter, until the want to buy it, which I think you ought to
the . right to redeem has been cut off in the man-do, let me no." ner hereinafter set forth,” by paying the
Mr. King on July 27th replied to this letpurchase money, interest, fees, and expenses. ter, addressing it to defendant at Waterloo,
 Under the first method provided in N. J.; that being the post office address of the fifty-ninth section, this right of redemp- the defendant's letter to him of July 22d. tion would be barred on the failure to re- This letter was returned to Mr. King undedeem within 60 days from the service of the livered, and a letter of Bellis (who had been notice to redeem. This method, therefore, defendant's agent at Waterloo) to Mr. King, is manifestly a strictly ex parte statutory and who received the Frenche letter, stated method, and, if the purchaser proposes in that a letter from his firm had come to Wathis manner to foreclose the right to redeem, terloo for James Frenche, “but cannot be deit must be strictly followed.
livered, as he is absent, and I have remailed  In the present case the purchaser re it to the senders.” No address was given. ceived a certificate of sale from the collector Mr. King's letter of July 27, 1910, was then of taxes, dated April 3, 1908, reciting the sale remailed by him to Mr. Frenche in a letter for taxes on March 23, 1908, of the lands addressed to him at Hoboken, on August 1st, in question to him for 30 years, for the sum at the address given by defendant's own letof $24.86. On March 26, 1910, written notices ter of May 11th, stating that the inclosed of this sale and to redeem the same within letter had been sent to him at Waterloo, and 60 days were served on both complainants returned unopened by Bellis. This letter of Clift and Best. On May 7, 1910, and within Mr. King was also returned to the writer this 60-day period, Best wrote to Frenche: unopened, and with the indorsement, “Re
"If you will send me an assignment of your fused.” On the following day, August 2d, tax claim on the Scheutz property by Mr. Bellis, I will give you a certified check for the defendant himself wrote to complainant's amount.'
solicitors that he had been informed that To which Frenche replied by letter of May they had been addressing letters to him
which he did not receive and further : 11, 1910:
“This is to inform you that as I have no "Box 125
business with you, no letters from you will be "Hoboken, N. J., May 11, '10. received.” "Mr. J. Frank Best-Dear Sir: In reply to
On the day of writing this letter from yours of May 7th I have too much to attend to at present to take up the Scheutse business Newton, August 2, 1910, the certificate of which would require considerable time, but as I tax sale, with the notice to redeem and afstated to you that you could have your time fidavits of service on complainants and for redemption extended if necessary I now others, were recorded in the clerk's office at state specifically that your time to redeem as joint mortgagee of the premises is hereby ex- Newton, in Sussex county, where the lands tended sixty days beyond its fixed expiration, lie. From this correspondence and the eviso that there is no need to bother about it at dence given at the hearing in connection present. I think Mr. Maclear will want some similar accommodation as he does not appear
with it, I conclude that the defendant, at to have his mind made up about redemption. least as early as July 22d, which was withPlease acknowledge this letter. I am, dear sir, in the time to which he had himself extend“Yours respectfully, James Frenche."
ed the time of redemption, had determined The complainants, relying on this letter, to stand on his strict right of foreclosure took no further steps to redeem within the under the statute by reason of the failure 60 days. Subsequently, on July 20, 1910, and to redeem within 60 days from the time of within the 60-day extension period given, Mr. the service of the notice on March 26th. King, one of the complainant's solicitors, in- The certificate, with its accompanying notice closed his firm's check for the amount of and affidavits, derive their whole efficacy taxes, $50.54; the same being figured as from this failure to redeem within the 60 nearly as he could from defendant's state- days so fixed by the notice. Complainant's ment, said by him to have been previously equity to be relieved from the effect of this sent them. Defendant, by a letter of July statutory ex parte foreclosure of the right 22, 1910, to Mr. King, written for him by a to redeem arises from the fact that the deMr. C. Bellis, returned this check, stating fendant, on an application to redeem, made that the amount was insufficient, asserting within the time limited by the 60-day notice, further that he had never sent a statement, himself requested a delay beyond the 60 days and that the amount due would have to be for the purpose of taking up the matter, and settled by agreement or by the court, as the thereby induced complainants not to attempt expenses and the trouble connected with it to redeem within the statutory period of 60
days. By this conduct he must be consid- her to have the decree set aside in order that ered as in equity to be estopped from set- she might defend. ting up, as against the complainants, the right | Cent. Dig. ss 533-542, 546, 548; Dec. Dig. $
[Ed. Note. For other cases, see Divorce, to use this 60-day notice as the basis of the
165.*] strict statutory foreclosure. The result of
3. DIVORCE (8 165*) — DECREE - OPENING this action on his part was that, as against GROUNDS-FALSE TESTIMONY. the complainants, defendant was obliged to A decree of divorce, obtained by a husband give a new 60-day notice under the statute, failed to defend, will be vacated on the wife's
a if he desired to avail himself of this ex application, irrespective of the wife's excuse parte method of foreclosure. This statutory for her default, as the state was an interested ex parte proceeding affords no method what party to the suit, and its interests had been ever for extending the time originally fixed requiring that it's rights be vindicated.
imposed upon by the conduct of the husband, by the notice, or for the settlement of any [Ed. Note.-For other cases, see Divorce, equities arising between the parties by rea- Cent. Dig. 88 533-542, 546, 548; Dec. Dig. § son of their agreements, express or im- 165.*] plied, made after serving the notice, to Suit for divorce by William C. Jones waive or not to proceed on the statutory no- against Anna P. Read Jones. On petition by tice given. By himself leading the complain-defendant to open a decree in favor of plainants to delay beyond the fixed statutory tiff. Petition granted, and suit dismissed. time, defendant is, in my judgment, estop- See, also, 89 Atl. 29. ped in equity, under the circumstances of Bourgeois & Coulomb, of Atlantic City, this case, from setting up this failure to re- and John W. Wescott, of Camden, for petideem under this notice as the basis of his tioner. Floyd H. Bradley, of Camden, for statutory absolute title. And this tax title defendant. must therefore be declared subject to redemption. What payments are to be made BACKES, V. C. On August 17, 1912, the on redemption will be determined, if the petitioner filed his petition for divorce a parties fail to agree.
vinculo, in wbich he alleged that he cohabit Several other questions were raised ed with his wife until June of 1906, when on the arguments and briefs; one by the com- she deserted him, and that for more than plainant questioning the validity of defend-two years then last past her desertion had ant's title under the sale. As here presented, been willful, continued, and obstinate. The this question strikes me as purely a question cause was undefended, and upon the report of legal title which could not be decided in of the master to whom it was referred, a dethis suit. Relief on this bill to redeem cree nisi was entered January 17, 1913, and proceeds on the assumption that the defend- on July 18th following a final decree of diant has, or can acquire, absolute title under vorce was signed. On November 18th of the the statute.
same year, before the decree was actually Another was raised by the defendant ques
enrolled, the defendant filed her petition, tioning complainant's title to the mortgage praying that the final decree be vacated, tioning complainant's title to the mortgage and that she be permitted to defend, on the and setting up title in a third person, a Mr. and that she be permitted to defend, on the MacLear. This question has been decided grounds of surprise and merits, in which she in complainant's favor in a suit to fore- fense by the fraudulent representations of
sets up that she was deprived of her de· close the mortgage brought against MacLear her husband, and that the decree was proand others.
cured by false testimony imposed upon the
court. An order to show cause issued, an (83 N. J. Eq. 571)
answer was filed, and on the day set for JONES V. JONES.
trial the parties and their witnesses were (Court of Chancery of New Jersey. Aug. 1, heard in open court. 1914.)
 The petitioner and defendant were 1. DIVORCE (8 133*)-SUFFICIENCY OF EVI
married in 1886, and lived together as husDENCE-DESERTION.
band and wife until June of 1906. At that In a husband's suit for divorce, evidence time they were living in 'Camden. During as to the circumstances surrounding the sepa- the previous fall, their daughter, a young ration of the parties held to show that the wife lady, had been sent to Swarthmore College did not desert the husband without his con- for a four-year course. She was in delicate sent. [Ed. Note.—For other cases, see Divorce, comfort the defendant planned to move to
health, and for her better protection and Cent. Dig. 88 446–448; Dec. Dig. § 133.*1
the college town. While her husband was in 2. DIVORCE (8 165*)-DECREE-OPENING-SUF- Denver, Colo., she wrote to him of her inFICIENCY OF EVIDENCE.
On a wife's petition to open a decree of di- tentions, and he replied under date of Janvorce in favor of the husband, evidence in sup- uary 22 (1906): port of her contention that she failed to de- "Anna: Your letter received this A. M. I fend the suit because of her belief, induced by am very sorry to hear that the children are not messages from the husband, that the suit would well and I am especially anxious about Edna. be withdrawn held to show surprise, entitling It might be wise for her to see Dr. Snader 1919 *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
Arch St. and have him make a thorough exami- | lived. From that time on, the petitioner nation particularly of her lungs, and prescribe never saw his wife to speak to her, although for her. I have great faith in his ability. In he was a frequent visitor at the house to regard to your going to Swarthmore to live, if it will contribute to your happiness or the see his children. The defendant's removal to health of the children it has my entire approval. Swarthmore constituted the alleged deserIt might be a good plan for you to consult tion upon which the decree of divorce is an agent as such a person would be more familiar with existing conditions and have knowl-based. edge of any opportunities to rent or buy. I The testimony taken before the master expect to be engaged here for some time yet, persuaded him to report that, while the petiand cannot say how soon I will be able to, go tioner was in the West, the defendant, witheast. Yours,
out his consent or knowledge, went to AtlanUpon the strength of this letter, the de- tic City, where she remained until the month fendant went to Swarthmore to look for a of September, and that during the latter place, and a few days afterwards wrote to part of the month of October or the early the petitioner a gossipy letter, in which, part of November, 1906, the defendant packed amongst other things, she said:
all of her belongings and caused them to be "Dear Will: * I suppose you would removed to Swarthmore, in the state of like to hear of our experience the other day Pennsylvania, without the consent or knowlat Swarthmore. Mrs. Keller, Willie and I started about twelve o'clock from Hamilton edge of the petitioner, at which latter time Court. We went to their country place, got the defendant deserted the petitioner, and, Bill the work horse. We went all over Swarth- further, that: more and saw only three houses that we cared for. Two was out by Strathaven Inn. One
"The petitioner visited the house where the is Graham's house which is $15,000 and the defendant was living, in Swarthmore, a numone adjoining it is $11,000. Now Will I am ber of times, and there saw his children; that afraid to mention the other one because it is so the defendant, from the
testimony shown, high in price but it is an ideal house.
It avoided meeting her husband, the petitioner, adjoins the college grounds and it has every and at other times purposely absented herself convenience. I went to see the agent yesterday. from her home in Swarthmore, when she knew His office is at Thirteenth and Chestnut. J. that her husband was coming to her home; T. Jackson is his name. When you come home that defendant stated that she would not reyou can go and see him if you like."
turn to Camden to live with the petitioner, and
it is evident to my mind that the defendant She closed the letter with a love message fully intended to desert her husband, when she from the children and herself. Upon the moved from Camden, New Jersey, to Swarthpetitioner's return to Camden he negotiated more, in the state of Pennsylvania." with the owner of the Graham house and pur- The petitioner had testified: That he lived chased it for $12,000 on April 19, 1906, plac- with his family at 107 North Seventh street, ing the title in his wife's name. He paid in Camden, until the 15th of June, 1906. That down $5,000, in cash, and with his wife ex prior to that time he and his wife had several ecuted a purchase-money mortgage for the altercations. That on one or two occasions balance. He made extensive alterations to his wife had told him that she would not the house, which he personally supervised; continue to live in Camden. That he had told purchased rugs and furniture, which he and her that he could not live anywhere else; that his daughter selected; paid for the moving his business required him to live in that city. of the household effects; made alterations On June 15th he was obliged to go to Coloraand repairs to the house until recently, and do. He returned in 17 or 18 days, and then up to the time of this application paid the went to his home, where he expected to find taxes on the property, interest on the mort- his wife and children. The house was closed gage, water rents, electric-light bills, tele- up, and he was informed that they had gone phone bills, besides sending to his wife a to Atlantic City. He did not see her during weekly allowance of $32.50, which was in the summer for the reasons stated by him, creased to $35 in the spring of 1913, and to that he believed she had gone away in one of his children each a monthly allowance. In her fits of anger, and that it was best to leave December of 1999 and January of 1910, he her alone as she would get over it and return purchased, in the name of his wife, addi- all right in the fall. As he had no place to tional ground adjoining the Swarthmore sleep, he went to his office building, where he home. In all he spent on the property and in furnished a room. Soon after this, about the supporting his family, the sum of $41,500. middle of September, he was again required In the month of June, 1906, the petitioner to go to Colorado and was gone until the 1st again went West, and the other members of of November, when he returned and went imthe family to Atlantic City for the summer, mediately to his home, and to his surprise as had been their custom. He returned in found all of the furniture moved with the exthe early part of July, and again went to ception of a few pieces of rubbish and the Denver the latter part of August. During framed marriage certificate. He learned that this period he made the arrangements for his wife had moved to Swarthmore, and he improving the house and for its furnishing. says, “I then knew that when she left me she When the house was substantially completed, intended to desert me." He further stated the defendant moved into it with her house that in the latter part of November, within hold effects (except some personal belongings two or three weeks of his return, he went to of her husband), where she has ever since Swarthmore to see his wife and talk over