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prior unrecorded assignment, was not a bona | Lindsley to him (about $625) and to the fide purchaser without notice.

[Ed. Note.-For other cases. see Mortgages, Cent. Dig. §§ 633-655; Dec. Dig. § 244.*] 3. MORTGAGES (§ 244*) — ASSIGNMENTS RIGHTS OF ASSIGNEE.

Manalapan Company, about $800 or $900. Neither the bond nor mortgage were delivered to MacLear with the assignment. MacLear'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 recordsignment to another party, D.'s assignee suced until January 21, 1910, shortly after the ceeded to the title and rights of D., though he 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 recorded still later, May 16, 1910. The assignment to MacLear was indexed in the clerk's index book under the name of Morris B. Lindsley, and not of Walter P. Lindsley, and complainants, who had before their purchase of the mortgage had the indexes examined, had no actual notice of the MacLear assignment.

[Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 633-655; Dec. Dig. § 244.*] Suit by William C. Clift and others against Elizabeth Scheutz and others. Heard on bill, answer, replication, and proofs. Decree in accordance with the opinion.

King & Vogt, of Morristown, for complainants. F. W. Fort, of Newark, for defendant MacLear.

[1] 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. FiDey & 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 delivered to the assignees with the assignment. The amount which afterwards became due on the contract to Dey & Sutphen was $3,500, and on January 12, 1910, Dey & Sutphen assigned the bond and mortgage, as well as the contract and the debt due thereon, to the complainants Clift and Best. The two assignments of the mortgage were recorded on January 21, 1910.

[2] The recording acts provide for the recording of assignments of mortgages and other instruments ("Conveyances," Rev. of 1898, § 21 [2 Comp. St. 1910, p. 1541], and Id. § 53 [2 Comp. St. 1910, p. 1552]), and that the record "shall be notice to all subsequent judgment creditors, purchasers and mortgagees of the execution and contents of the instrument." As to the effect of not recording the assignment or other instrument, it is provided (Id. § 54) that it shall "be void and of no effect against subsequent judgment creditors without notice, and against all subsequent bona fide purchasers and mortgagees

not having notice there of, whose deed or mortgage shall have been first duly recorded." The previous act relating to mortgages (Rev. of 1874 [3 Comp. St. 1910, p. 3407, etc.]) etc.]) had provided only that the record of assignment of mortgages should be "notice to all concerned" that the mortgage was assigned (section 32, 3 Comp. St. 1910, p. 3418, and section 34, 3 Comp. St. 1910, p. 3419); that

A writ of attachment at the suit of the Manalapan Light Company was issued against Walter P. Lindsley subsequent to the assignment to Dey & Sutphen, and on June 19, 1906, the sheriff under this writ attached in the hands of Dey & Sutphen all the right, title, and interest of the defendant Walter P. Lindsley in this mortgage, and made return that he attached such interest on the mortgage "in the hands of Dey & Sutphen, but not assigned to them." The authority for inserting this statement "but not assigned to them" in the return has not been shown, and, so far as Dey & Sutphen are concerned, 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. MacLear was the attorney for the company in this attachment suit, and more than a year later, on August 23, 1907, he received an assignment of this bond and mortgage from Walter P. Lindsley, executed in his name by Morris B. Lindsley, his attorney in fact, under a power of attorney referred to in the assignment. This assignment was made to MacLear to secure money owing by *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

without actual notice and releases to persons not having actual notice, should be valid.

These sections of the mortgage act revision do not, as do the conveyance acts, expressly make the assignments invalid if unrecorded, against any persons, but save only the rights of the mortgagor on payments or releasers of the mortgaged lands.

Section 54 of the conveyance act applies to every deed or instrument set forth in the

SALE-PROCEEDING TO BAR RIGHT TO RE

DEEM.

twenty-first section of the act, which in- 12. TAXATION (§ 701*)—REDEMPTION FROM TAX cludes assignments of mortgages, and the 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 interested within such period to redeem, reassignment to Dey & Sutphen. In my judg-quested a delay beyond the 60 days for the ment MacLear cannot be considered a bona fide purchaser for a valuable consideration without notice.

The fact that the assignor did not have the bond and mortgage to deliver with the assignment, while it might not, as between the assignor and the assignee, prevent the passing of such title thereto as the assignor had, was a notice that they were or might be held by some one other than the assignor. Kamena v. Huelbig, 27 N. J. Eq. 78, 80 (Zabriskie, Ch. 1872). And actual notice to MacLear that Dey & Sutphen held the possession at the time of the attachment is proved. He was the attorney for the company who attached the bond and mortgage as in Dey & Sutphen's possession, and subsequently took his assignment of the mortgage to secure this company's debt. No circumstances have appeared which deprive these facts of their effect as notice.

[3] No acts of Dey & Sutphen have been proved which disentitle them to stand upon their assignment and possession of the bond and mortgage as prior to MacLear's assignment, and the complainants have succeeded to the title and rights to Dey & Sutphen. The fact that complainants paid only a small sum for the assignment does not create any equity in favor of the subsequent assignee, and the claim of counsel that the subsequent assignee is entitled to redeem on payment

of this sum cannot be allowed.

A decree that the assignment to the complainants is prior to that of the defendant MacLear, and that as between them they are entitled to be first paid out of the proceeds of sale under foreclosure, will be advised.

(83 N. J. Eq. 437)

CLIFT et al. v. FRENCHE.

purpose of taking up the matter, and thereby induced such party not to attempt to redeem within the statutory period, the purchaser was estopped, as against such party, from using such notice as the basis of a statutory foreclosure of the right to redeem, and, to avail himself of the statutory remedy, was bound to give a new notice.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1407, 1409-1411; Dec. Dig. § 701.*]

3. TAXATION (§ 722*)-TAX SALES-SUITS TO REDEEM-MATTERS DETERMINABLE.

A suit to redeem from a tax sale proceeds on the assumption that the defendant has or can acquire an absolute title, and the validity of his title under the sale cannot be attacked.

Cent. Dig. §§ 1449-1453; Dec. Dig. § 722.*]
[Ed. Note. For other cases, see Taxation,

Suit by William C. Clift and others against
James Frenche. Decree for complainant.

King & Vogt, of Morristown, for complainants. E. A. Rayner, of Newark, for defend

ant.

EMERY, V. C. This is a bill by a mortgagee to redeem lands sold for nonpayment of taxes. The lands were sold for 30 years, and the purchaser claims that the right of redemption has been cut off by proceedings taken under the "act for the assessment and collection of taxes." P. L. 1903, c. 208, § 59, for barring or foreclosing the right of reP. 432. This section provides two methods demption, after the period of redemption (two years after the sale) has expired. The first is by an ex parte proceeding entirely within the control of the purchaser, and is by his giving written notice to all persons interested in the land of their right to redeem, and that, unless they do so within 60 days after the service of the notice, their right to redeem will be barred. After this

(Court of Chancery of New Jersey. July 23, time (60 days) has expired without redemp

1914.)

1. TAXATION (§ 701*)-REDEMPTION FROM TAX SALE-PROCEEDING TO BAR RIGHT TO RE

DEEM.

Section 56 pro

tion, the purchaser may annex the notice and affidavit of service to the certificate of sale, together with an affidavit that the sale has not been redeemed, and record and file the same therewith in the office of the county clerk or register. By the statute "the said notice and affidavits and the record thereof shall be presumptive evidence of the service and facts therein stated." vides for the recording of the certificate of sale with these notices and affidavits annexed, and also that the certificate of sale shall be presumptive evidence in all courts of the title of the purchaser. The second method of [Ed. Note.-For other cases, see Taxation. barring the right of redemption given by Cent. Dig. §§ 1407, 1409-1411; Dec. Dig. section 59 is by a bill to foreclose, and this 701.*] method may be taken whether the 60 days'

Under P. L. 1903, p. 432, § 59, providing that the purchaser of land at a tax sale may give written notice to all persons interested in the land of their right to redeem, and that unless they do so within two years after the sale, if the notice is served more than 60 days before the end of the term, or otherwise within 60 days after the service of the notice, their right of redemption will be barred, and that, if there shall be no redemption within such term of two years or within the time limited by the notice, the right of redemption shall be barred, to bar the right of redemption the statute must be strictly followed.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 91 A.-52

notice has been given or not, and, where a bill is filed, the right to redeem continues until barred by the decree of sale of the court of chancery.

As to the expiration of the right to redeem, the fifty-seventh section provides that persons interested "may redeem the same at any time within two years from the date of sale, or at any time thereafter, until the right to redeem has been cut off in the manner hereinafter set forth," by paying the purchase money, interest, fees, and expenses. [1] Under the first method provided in the fifty-ninth section, this right of redemption would be barred on the failure to redeem within 60 days from the service of the notice to redeem. This method, therefore, is manifestly a strictly ex parte statutory method, and, if the purchaser proposes in this manner to foreclose the right to redeem, it must be strictly followed.

[2] In the present case the purchaser received a certificate of sale from the collector of taxes, dated April 3, 1908, reciting the sale for taxes on March 23, 1908, of the lands in question to him for 30 years, for the sum of $24.86. On March 26, 1910, written notices of this sale and to redeem the same within 60 days were served on both complainants Clift and Best. On May 7, 1910, and within this 60-day period, Best wrote to Frenche: "If you will send me an assignment of your tax claim on the Scheutz property by Mr. Bellis, I will give you a certified check for the

amount."

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"Hoboken, N. J., May 11, '10. "Mr. J. Frank Best-Dear Sir: In reply to yours of May 7th I have too much to attend to at present to take up the Scheutse business which would require considerable time, but as I stated to you that you could have your time for redemption extended if necessary I now state specifically that your time to redeem as joint mortgagee of the premises is hereby extended sixty days beyond its fixed expiration, so that there is no need to bother about it at present. I think Mr. Maclear will want some similar accommodation as he does not appear to have his mind made up about redemption. Please acknowledge this letter. I am, dear sir, "Yours respectfully, James Frenche."

The complainants, relying on this letter, took no further steps to redeem within the 60 days. Subsequently, on July 20, 1910, and within the 60-day extension period given, Mr. King, one of the complainant's solicitors, inclosed his firm's check for the amount of taxes, $50.54; the same being figured as nearly as he could from defendant's statement, said by him to have been previously sent them. Defendant, by a letter of July 22, 1910, to Mr. King, written for him by a Mr. C. Bellis, returned this check, stating that the amount was insufficient, asserting further that he had never sent a statement, and that the amount due would have to be settled by agreement or by the court, as the expenses and the trouble connected with it

had been a great deal more than the taxes. He further stated that the right to redeem the property expired May 24th, but he had favored Mr. Best by allowing him some extra time "to continue his negotiations for his own individual interest," and then continues: "He has had four months and has done nothing and there is nothing can be done now except to leave the tax lease stand. If you want to buy it, which I think you ought to do, let me no."

Mr. King on July 27th replied to this letter, addressing it to defendant at Waterloo, N. J.; that being the post office address of the defendant's letter to him of July 22d. This letter was returned to Mr. King undelivered, and a letter of Bellis (who had been defendant's agent at Waterloo) to Mr. King, and who received the Frenche letter, stated that a letter from his firm had come to Waterloo for James Frenche, "but cannot be delivered, as he is absent, and I have remailed it to the senders." No address was given. Mr. King's letter of July 27, 1910, was then remailed by him to Mr. Frenche in a letter addressed to him at Hoboken, on August 1st, at the address given by defendant's own letter of May 11th, stating that the inclosed letter had been sent to him at Waterloo, and returned unopened by Bellis. This letter of Mr. King was also returned to the writer unopened, and with the indorsement, "Refused." On the following day, August 2d, defendant himself wrote to complainant's

solicitors that he had been informed that

which he did not receive and further: they had been addressing letters to him

"This is to inform you that as I have no business with you, no letters from you will be received."

On the day of writing this letter from Newton, August 2, 1910, the certificate of tax sale, with the notice to redeem and affidavits of service on complainants and others, were recorded in the clerk's office at Newton, in Sussex county, where the lands lie. From this correspondence and the evidence given at the hearing in connection with it, I conclude that the defendant, at least as early as July 22d, which was within the time to which he had himself extended the time of redemption, had determined to stand on his strict right of foreclosure under the statute by reason of the failure to redeem within 60 days from the time of the service of the notice on March 26th. The certificate, with its accompanying notice and affidavits, derive their whole efficacy from this failure to redeem within the 60 days so fixed by the notice. Complainant's equity to be relieved from the effect of this statutory ex parte foreclosure of the right to redeem arises from the fact that the defendant, on an application to redeem, made within the time limited by the 60-day notice, himself requested a delay beyond the 60 days for the purpose of taking up the matter, and thereby induced complainants not to attempt to redeem within the statutory period of 60

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 533-542, 546, 548;

165.*]

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Dec. Dig.

3. DIVORCE (§ 165*) DECREE OPENING GROUNDS-FALSE TESTIMONY.

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A decree of divorce, obtained by a husband failed to defend, will be vacated on the wife's by false testimony in a suit which the wife application, irrespective of the wife's excuse for her default, as the state was an interested party to the suit, and its interests had been imposed upon by the conduct of the husband, requiring that its rights be vindicated.

[Ed. Note.-For other cases, see Divorce, Cent. Dig. §§ 533-542, 546, 548; Dec. Dig. § 165.*]

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 to use this 60-day notice as the basis of the strict statutory foreclosure. The result of this action on his part was that, as against the complainants, defendant was obliged to give a new 60-day notice under the statute, if he desired to avail himself of this ex parte method of foreclosure. This statutory ex parte proceeding affords no method whatever for extending the time originally fixed by the notice, or for the settlement of any equities arising between the parties by reason of their agreements, express or implied, made after serving the notice, to waive or not to proceed on the statutory notice given. By himself leading the complainants to delay beyond the fixed statutory time, defendant is, in my judgment, estopped in equity, under the circumstances of this case, from setting up this failure to redeem under this notice as the basis of his statutory absolute title. And this tax title must therefore be declared subject to redemption. What payments are to be made on redemption will be determined, if the parties fail to agree.

[3] Several other questions were raised on the arguments and briefs; one by the complainant questioning the validity of defendant's title under the sale. As here presented, this question strikes me as purely a question of legal title which could not be decided in this suit. Relief on this bill to redeem proceeds on the assumption that the defendant has, or can acquire, absolute title under the statute.

Suit for divorce by William C. Jones against Anna P. Read Jones. On petition by defendant to open a decree in favor of plaintiff. Petition granted, and suit dismissed. See, also, 89 Atl. 29.

Bourgeois & Coulomb, of Atlantic City, and John W. Wescott, of Camden, for petitioner. Floyd H. Bradley, of Camden, for defendant.

BACKES, V. C. On August 17, 1912, the petitioner filed his petition for divorce a vinculo, in which he alleged that he cohabited with his wife until June of 1906, when she deserted him, and that for more than two years then last past her desertion had been willful, continued, and obstinate. The cause was undefended, and upon the report of the master to whom it was referred, a decree nisi was entered January 17, 1913, and on July 18th following a final decree of divorce was signed. On November 18th of the same year, before the decree was actually enrolled, the defendant filed her petition,

praying that the final decree be vacated, and that she be permitted to defend, on the grounds of surprise and merits, in which she

Another was raised by the defendant questioning complainant's title to the mortgage and setting up title in a third person, a Mr. MacLear. This question has been decided in complainant's favor in a suit to fore-sets up that she was deprived of her de

• close the mortgage brought against MacLear and others.

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fense by the fraudulent representations of her husband, and that the decree was procured by false testimony imposed upon the court. An order to show cause issued, an answer was filed, and on the day set for trial the parties and their witnesses were heard in open court.

[1] The petitioner and defendant married in 1886, and lived together as hus

During

band and wife until June of 1906.
time they were living in 'Camden.
the previous fall, their daughter, a young
lady, had been sent to Swarthmore College
for a four-year course. She was in delicate
comfort the defendant planned to move to
health, and for her better protection and
the college town. While her husband was in
Denver, Colo., she wrote to him of her in-
tentions, and he replied under date of Jan-
uary 22 (1906):

"Anna: Your letter received this A. M. I am very sorry to hear that the children are not well and I am especially anxious about Edna. 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

he was a frequent visitor at the house to see his children. The defendant's removal to Swarthmore constituted the alleged desertion upon which the decree of divorce is

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 regard to your going to Swarthmore to live, if it will contribute to your happiness or the health of the children it has my entire approval. It might be a good plan for you to consult an agent as such a person would be more familiar with existing conditions and have knowledge of any opportunities to rent or buy. I expect to be engaged here for some time yet, and cannot say how soon I will be able to go east. Yours, Will."

Upon the strength of this letter, the defendant went to Swarthmore to look for a place, and a few days afterwards wrote to the petitioner a gossipy letter, in which, amongst other things, she said:

based.

The testimony taken before the master persuaded him to report that, while the petitioner was in the West, the defendant, without his consent or knowledge, went to Atlantic City, where she remained until the month of September, and that during the latter part of the month of October or the early part of November, 1906, the defendant packed 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 high in price but it is an ideal house. It adjoins the college grounds and it has every convenience. I went to see the agent yesterday. His office is at Thirteenth and Chestnut. J. T. Jackson is his name. When you come home you can go and see him if you like."

She closed the letter with a love message from the children and herself. Upon the petitioner's return to Camden he negotiated with the owner of the Graham house and purchased it for $12,000 on April 19, 1906, placing the title in his wife's name. He paid down $5,000, in cash, and with his wife ex ecuted a purchase-money mortgage for the balance. He made extensive alterations to the house, which he personally supervised; purchased rugs and furniture, which he and his daughter selected; paid for the moving of the household effects; made alterations and repairs to the house until recently, and up to the time of this application paid the taxes on the property, interest on the mortgage, water rents, electric-light bills, telephone bills, besides sending to his wife a weekly allowance of $32.50, which was increased to $35 in the spring of 1913, and to his children each a monthly allowance. In December of 1999 and January of 1910, he purchased, in the name of his wife, additional ground adjoining the Swarthmore home. In all he spent on the property and in supporting his family, the sum of $41,500. In the month of June, 1906, the petitioner again went West, and the other members of the family to Atlantic City for the summer, as had been their custom. He returned in the early part of July, and again went to Denver the latter part of August. During this period he made the arrangements for improving the house and for its furnishing. When the house was substantially completed, the defendant moved into it with her household effects (except some personal belongings of her husband), where she has ever since

avoided meeting her husband, the petitioner, the defendant, from the testimony shown, and at other times purposely absented herself from her home in Swarthmore, when she knew that her husband was coming to her home; that defendant stated that she would not return to Camden to live with the petitioner, and it is evident to my mind that the defendant fully intended to desert her husband, when she moved from Camden, New Jersey, to Swarthmore, in the state of Pennsylvania."

The petitioner had testified: That he lived with his family at 107 North Seventh street. in Camden, until the 15th of June, 1906. That prior to that time he and his wife had several altercations. That on one or two occasions his wife had told him that she would not continue to live in Camden. That he had told her that he could not live anywhere else; that his business required him to live in that city. On June 15th he was obliged to go to Colorado. He returned in 17 or 18 days, and then went to his home, where he expected to find his wife and children. The house was closed up, and he was informed that they had gone to Atlantic City. He did not see her during the summer for the reasons stated by him, that he believed she had gone away in one of her fits of anger, and that it was best to leave her alone as she would get over it and return all right in the fall. As he had no place to sleep, he went to his office building, where he furnished a room. Soon after this, about the middle of September, he was again required to go to Colorado and was gone until the 1st of November, when he returned and went immediately to his home, and to his surprise found all of the furniture moved with the exception of a few pieces of rubbish and the framed marriage certificate. He learned that his wife had moved to Swarthmore, and he says, "I then knew that when she left me she intended to desert me." He further stated that in the latter part of November, within two or three weeks of his return, he went to Swarthmore to see his wife and talk over

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