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the rights of the plaintiffs, and should col-1 The court sustained the demurrers and dislect the amount thereof from the state road commission and the county commissioners of Caroline and Talbot counties.

The relief prayed for was:

(1) That a receiver may be appointed to take charge of the said fund now in the hands of the said state roads commission and the said O. E. Weller, as chairman thereof, and the said county commissioners of Talbot county and the said county commissioners of Caroline county, and such other property as the said York Bridge Company may have in the state of Maryland, and to preserve or dispose of the same under the direction of this court.

(2) That the said state roads commission and the said O. E. Weller, as chairman thereof, and the said county commissioners of Talbot county and the said county commissioners of Caroline county may be required to bring into this court, to be deposited to the credit of this cause, the aforesaid fund now due on said con

tract.

(3) That the said York Bridge Company and its foreign receiver may by injunction be restrained and enjoined from collecting the said fund or any part thereof from the said state roads commission, the said O. E. Weller, as chairman thereof, the said county commissioners of Talbot county and the said county commissioners of Caroline county.

(4) That the said state roads commission and

O. E. Weller, as chairman thereof, the said county commissioners of Talbot county and the said county commissioners of Caroline county may by injunction be restrained and enjoined from paying over the said sum of money or any part thereof, until the further orders of this court.

(5) That your orators' claim to the said fund may be adjudicated by this honorable court in these proceedings.

(6) That the said the Title Guaranty and Surety Company may be required to pay the claim of your orators, and in turn be subrogated to the rights of the plaintiffs to the fund in question.

(7) That your orators may have such other and further relief as the nature of their case may require.

Redmond C. Stewart, the receiver of the York Bridge Company, filed a petition in which he stated that by an order of court passed in the case pending in circuit court No. 2 of Baltimore city, entitled "York National Bank v. York Bridge Co.," he had been authorized to take proceedings in this cause, looking to the establishment of his claims as receiver against the fund involved in this controversy, and prayed to be made a party defendant, and an order of court was passed admitting him as a party defendant as prayed.

The state roads commission filed its answer to the bill in which it denied:

"That the Title Guaranty & Surety Company is entitled to collect the amount of the indebtedness of the York Bridge Company to the complainant from these defendants, or that the complainant is entitled to an injunction restraining these defendants from paying over said balance of $5,516.66, or any part thereof, to the York Bridge Company, or its receiver, or that the complainant is entitled to have a receiver appointed for said sum of money, or any part thereof."

The Title Guaranty & Surety Company and Redmond C. Stewart, the receiver of the York Bridge Company, filed demurrers to the bill.

missed the bill, but ordered the costs of the proceedings to be paid by the receiver out of the fund in dispute. From this order the plaintiffs have appealed.

[1] "It is an established rule of equity that, when a corporation becomes insolvent. it is so far civilly dead that its property may be administered as a trust fund for the benefit of its stockholders and creditors (Graham v. La Crosse & M. R. R. Co., 102 U. S. 148, 167, 26 L. Ed. 106)-not simply of stockholders and creditors residing in a particular state, but all stockholders and creditors of whatever state they may be citizens. In Wabash St. L. & P. R. R. Co. v. Ham, 114 U. S. 587, 594, 5 Sup. Ct. 1081, 29 L. Ed. 235, it was said that the property of a corporation was a trust fund for the payment of its debts, in the sense that when the corporation was lawfully dissolved, and all its business wound up, or when it was insolvent, all its creditors were entitled in equity to have their debts paid out of the corporate property before any distribution thereof among the stockholders.

When the general debts and assets

of a private corporation, lawfully doing business in a state, are in course of administration by the courts of such state, creditors who are citizens of other states are entitled, under the Constitution of the United States, to stand on the same plane with creditors of like class who are citizens of such state, and cannot be denied equality of right simply because they do not reside in that state, but are citizens residing in other states of the Union." Blake v. McClung et al., 172 U. S. 239, 19 Sup. Ct. 165, 43 L. Ed. 432.

[2] The Title Guaranty & Surety Company is not liable for the payment of the plaintiffs' claim for the reason that it assumed no such liability under the terms of the bond. Although such a liability was asserted by the bill, it was not pressed in argument, or insisted upon in the brief, and it must be conceded that, under the terms of the bond, which we have transcribed, that company is under no obligation to pay the plaintiffs' claim.

It is said in 4 Elliott on Contracts, § 3633, that:

"The contractor may assign different parts of the work to subcontractors and others, unless prohibited by the agreement, but he is responsible for those he employs, since a contract does not exist between a subcontractor employed by the general contractor and the owner of the building, and the responsibility of the owner is only to the general contractor. Thus a provision in a contract for the construction of a railroad, permitting the railroad company to apply any money due or to become due under the contract to the payment of liens for labor and materials furnished the contractor, does not impose any obligation on the railroad company to pay liens, since the provision was wholly for the benefit of the railroad company."

What the York Bridge Company in fact did was to sublet a portion of the work covered by the contract to the plaintiffs, although, by the express provision of the con

tract quoted above, it was prohibited from [ doing so, without the written order of the county commissioners approved by the engi- | neer, and this order and approval does not appear to have been given. It was likewise prohibited from assigning any money payable under the contract. The plaintiffs must be treated as mere subcontractors.

[3] They are simply creditors of the York Bridge Company, and not of the defendants, who are debtors to that company, and to whose receiver the fund is now payable. Under the facts of the case, the doctrine of subrogation has no application. That doctrine is never applied, when by so doing it will work an injury upon other persons by destroying their legal or equitable rights. Milholland & Wilcox, Trustees, v. Tiffany, 64 Md. 460, 2 Atl. 834, the court says:

In

It "may be applied on equitable principles in behalf of one, who at the instance and request of the debtor pays a lien or incumbrance which he was under no legal obligation to pay, provided it does not interfere with intervening rights and incumbrances. It will not, of course, be applied as against superior or equal equi

ties."

The plaintiffs have no more claim upon the funds than other persons who may have supplied labor and material on the erection of the Dover Bridge. To sustain the plaintiffs'

claim under the circumstances would be to establish a precedent that might involve the public authorities in litigation and result in the expenditure of public money and the consumption of public time in any case in which there was a dispute between the subcontractor and the general contractor. Although the facts are not precisely similar, the principles announced in Lombard Gov. Co. v. Mayor and City Council of Baltimore, 121 Md. 303, 88 Atl. 140, should be applied to this case. The plaintiffs occupy the same situation as other subcontractor creditors of the insolvent company, and must share rate ably with them in the distribution of the assets of the company..

The cases of Ex parte Golding, Davis & Co., 13 Ch. Div. 628, and Kemp v. Falk, 7 App. Cas. 573, cited by the appellants, dealt with the right of stoppage in transitu, and established the right of an unpaid vendor to the surplus proceeds of the sale of his own goods after the rights of the subpurchaser had been performed. In the first case cited there had been an absolute sale of the goods by the original purchaser, but the purchase money had not been paid. "Can the vendor," said Cotton, L. J., "make effectual his right of stoppage in transitu without defeating in any way the interest of the subpurchaser? In my opinion he can. He can say: I claim the right to retain my vendor's lien. I will not defeat the right of the subpurchaser, but what I claim is to defeat the right of the purchaser from me; that is, to intercept the purchase money which he will get, so far as is necessary to pay me."

Nor do we find anything in the cases of Bellamy v. Davey (1891) 3 Ch. 540, and Hurley v. Atchison, etc., Ry., 213 U. S. 126, 29 Sup. Ct. 466, 53 L. Ed. 729, in conflict with the conclusion we have reached. Those cases presented a dissimilar state of facts and were governed by different principles.

The order appealed from will be affirmed. Order affirmed; the costs in this suit to be paid by the receiver of the York Bridge Company out of the fund.

(83 N. J. Eq. 470) MAYOR AND COMMON COUNCIL OF NEWARK V. NATIONAL SILK DYEING CO. et al. (No. 38171.)

1914.)

(Court of Chancery of New Jersey. Aug. 21, INJUNCTION (§ 26*)-GROUNDS OF RELIEF. An injunction could not be granted to enjoin separate suits at law, brought by millowners, whose factories adjoin the Passaic river, for damages for the wrongful abstraction of water from the river by a water company, which suits had no connection with each other, since to do so would violate a fundamental equity rule that distinct and independent causes of action may not be united in one bill. Cent. Dig. 88 24-49, 54-61; Dec. Dig. § 26.*]

[Ed. Note.-For other cases, see Injunction,

Suit by the Mayor and Common Council of Newark against the National Silk Dyeing Company and others, to enjoin certain suits at law. Denied.

Herbert Boggs, of Newark, for complainant. W. I. Lewis, of Paterson, for National Silk Dyeing Co. et al. Gilbert Collins, of Jersey City, for East Jersey Water Co.

STEVENS, V. C. This is an application to enjoin 12 suits at law, brought by millowners, whose factories adjoin the Passaic river, for damages for the wrongful abstraction of water by Newark, Jersey City, and the East Jersey Water Company. The application must be denied, for the reasons given by me in the case of Newark v. Chestnut Hill Land Co., 77 N. J. Eq. 23, 75 Atl. 644.

It is said that the case on hand is distinguishable from the case cited in that there it did not appear that a multiplicity of suits would be prevented by the mere transfer of jurisdiction, while here it does, for the object here is to consolidate 12 suits into one. But, if this court sustained the contention, it would violate one of the fundamental rules of equity pleading, viz., that distinct and independent causes of action must not be united in one bill. The suits by the National Silk Dyeing Company against Newark have no connection with those against Jersey City or the East Jersey Water Company. The suits by the different companies against those corporations have no connection with each other. Simmons v. Paterson, 60 N. J. Eq. 385, 45 Atl. 995, 48 L. R. A. 717, 83 Am. St.

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

graph 5, to make contracts, express or implied, with reference to the improvement of real property which would be enforced in equity, though not created by conveyance or other instrument. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 575-581; Dec. Dig. § 150.*] 4. HUSBAND AND WIFE (§ 202*)_OWNERSHIP OF PROPERTY-RESTRICTIONS-ENFORCEMENT AGAINST WIFE.

Rep. 642, was quite different. There several | did not restrict the power of a wife, under paracomplainants, suffering from a common nuisance, joined in one bill. The effect of this nuisance upon lands, known as riparian, was the subject dealt with by the Court of Errors. Here it would seem that the injury or principal injury complained of is the injury to the various businesses of the plaintiffs. There the complainants were affected by the same act. Here the plaintiffs are affected by the perfectly distinct acts of Newark, Jersey City, and the water company.

Where a husband and wife, owning a tract of land by the entirety, laid it out in building lots according to a general plan, imposing limitations on the use of the land as building lots It is true that the aggregate damage re- of first-class one-family residences on the tract, and restrictions intended to secure the erection sulting from the separate acts of the three and the husband sold complainant a lot, with wrongdoers may be variously estimated by reference to the plan, which showed that certain different juries, if the cases be tried sepa- other lots were abutting and subject to such rately, but the possibility of different find-restrictions, the wife after the death of her husband, and becoming a feme sole, was liaings on the same state of facts is not able to complainant for the performance of the ground of equity jurisdiction. Besides, there is nothing to indicate that, if the verdicts should be the result of differing or conflicting estimates of total damage, Newark would be the one to suffer. If consolidation of the suits for the purpose of trial be, to a greater or lesser extent, desirable, I know of no reason why the Supreme Court should not

be asked to consolidate.

I cannot overlook the fact that the Supreme Court, in the suits brought by the Weidman Dyeing Company, has formulated a rule which it has applied to this very class of cases, thus declaring that it deems itself competent properly to deal with them.

(83 N. J. Eq. 454)

SCHICKHAUS v. SANFORD. (No. 33-478.) (Court of Chancery of New Jersey. Aug. 21, 1914.)

1. HUSBAND AND WIFE (§ 193*)-MARRIED WOMEN-RIGHT TO CONTRACT-STATUTES.

limitations and restrictions with reference to the adjoining property as an implied covenant, though all of the restrictions and limitations were not specified in complainant's deed.

[Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 737, 945; Dec. Dig. § 202.*]

Action by Emma L. Schickhaus against Margaret J. Sanford. On motion to strike out bill for want of equity. Denied.

W. C. Headley, of Newark, for the motion. Ernest F. Keer, of Newark, opposed.

EMERY, V. C. The facts set out in the bill substantially show that one Sanford and his wife, being the owners by the entirety of a large tract of land in Newark, laid out the same for sale in building lots according to a general and uniform plan relating to the limitations made upon the use of said lands as building lots, and with restrictions, intended to secure the erection of first-class onefamily residences on the tract. The bill also shows specially, as to the lot which was purchased by the complainant's predecessor in title, that according to the general plan as declared by the owners, appearing by the map adopted by the owners, complainant's lot was to be a lot 50 feet by about 100 feet in depth, located on Sanford avenue, one of the three streets laid out through the tract, and abutted on two lots fronting on Clinton avenue, each about 50 feet in width and 175 feet in depth. According to the general plan Restrictions, in a general plan adopted by the owner to sell lots, may in equity be im- as alleged in the bill, these two lots were to posed on the lands beyond the express restric-be sold together as a lot fronting 100 feet tions contained in the deeds to the purchaser, on Clinton avenue and 175 feet deep. Comon the theory of implied covenant.

3 Comp. St. 1910, p. 3226, § 5, declaring that contracts of a married woman shall be enforceable in equity as if she were sole, is qualified by section 14, declaring that a married woman may not execute any conveyance of her real property or any instrument incumbering the same without her husband's joinder.

[Ed. Note. For other cases, see Husband and Wife, Cent. Dig. §§ 716-718, 940; Dec. Dig. § 193.*]

2. COVENANTS (§ 20*)

TIONS.

IMPLIED RESTRIC

[Ed. Note.-For other cases, see Covenants, Cent. Dig. § 19; Dec. Dig. § 20.*] 3. HUSBAND AND WIFE ($150*)-MARRIED WOMEN CONTRACTS ENFORCEMENT IN EQUITY.

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3 Comp. St. 1910, p. 3226, § 5, declares that contracts of a married woman shall be enforceable in equity as though she were sole,

plainant's lot was purchased, relying on the existence of this map and plan, making the adjoining lots abutting lots, and upon the special representation by the owners that

these lots on Clinton avenue were to be sold as abutting lots, and, as thus shown on the map then produced, for the purpose of inducing complainant's purchase of the adjoinand section 14 provides that a married woman may not execute any conveyance or incum- ing lot, the price of which, as then agreed on, brance on her real property without her hus- was increased by reason of this adjacency band's joinder. Held, that paragraph 14 reHeld, that paragraph 14 re- to the abutting lots. But the deed for comlated only to the character of conveyances and instruments by which a married woman's real plainant's lot, which is also set out in the property might be conveyed or incumbered, and bill, while it referred to the lot as being No.

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

man and while holding an estate in entirety with her husband; and that, in the absence of any deed or conveyance imposing the equitable burden or restrictions on her remaining lands, she is not, as the owner of the entire estate after her husband's death, bound by such plan made during the coverture and during the continuance of the estate by the entirety.

22 on the map, did not contain any express | joined in by her while she was a married worestriction or covenant, on the part of the grantors, that the adjoining lots should be sold as abutting lots, as shown on the map. It did, however, contain express restrictions as to the character and use of the building to be erected by complainant upon the lot conveyed, its distance from the curb line, its cost, and also contained a covenant on behalf of the husband (in which the wife did not join) that no stable should be erected or placed on the lands lying south of and adjoining the lots conveyed (being the abutting lots) within 40 feet of the dwelling house to be erected on the premises conveyed. The wife herself made no express covenant by the deed in relation to the adjoining lots.

Complainant's predecessor in title, as her bill states, refused to accept this deed, because she desired further and more explicit assurances that the building plan or scheme would be carried on in respect to the lot conveyed being an abutting lot, and thereupon Mr. Sanford wrote the following letter:

"In regard to the sale of lot 22 on map of my property (being complainant's lot) in answer to your request of me to my intentions in regard to my other property lying between the lot conveyed by me to you and Clinton avenue (the abutting lots), state that my intention is to sell all my property under restrictions, and the lots lying between your lot and Clinton avenue, in two lots or plots only, and if a stable be allowed on either of said lots that the same be placed on the dividing or central line of the lots and at least 40 feet from any dwelling house erected by you."

[1] The Married Women's Act (Compiled Stats. p. 3226, § 5), makes the contracts of a married woman enforceable in equity as if she were a feme sole, but the subsequent section of the same act (Id. p. 3237, § 14) qualifies the effect of this section by providing that it shall not enable a married woman to execute any conveyance of her real estate or any instrument incumbering the same, without her husband's joining therein, as heretofore.

The husband, in the deed conveying complainant's lot, entered into an express covenant restricting the character and use of the adjoining lots, but in this covenant the wife did not join, nor did the covenant entered into by the husband expressly restrict the sale as an adjoining lot, or the erection of any building other than a stable within 40 feet of the dwelling house to be erected on the purchaser's lot. The husband did, however, by his letter set out in the bill, impliedly, if not expressly, agree that the lots in question should be abutting lots, and procured the sale and the acceptance of the deed for This letter was not signed by Mrs. Sanford, the purpose of erecting a dwelling house, on who has survived her husband, and is now the faith of this assurance. It is not claimthe sole owner of the unsold portions of the ed that the wife's estate after her husband's Since her husband's death, she has, death is bound by this letter as a contract as the bill alleges, repudiated any obligation on her part, and, under the decisions, it to observe the assurances of the letter in could not be incumbered by the husband's reference to the method of sale of the lots, sole agreement. Washburn v. Burns, 34 N. and has (among other acts) offered the rear J. Law, 18; Servis v. Dorn, 76 N. J. Eq. 241, portion of the lots abutting on complainant's 76 Atl. 246 (Walker, V. C., 1909); 2 Kent's lot for sale as a single lot fronting on the Comm. 133. It is claimed, however, that she same street with complainant, and as an ad- is bound in equity to observe these restricjoining lot. If this change should be carried tions by reason of the general building plan out and a dwelling be erected adjoining com-imposed and adopted by both of them in conplainant's lot, it would deprive complainant nection with the map referred to in the deed, of certain advantages of light, air, and access which showed the lots as abutting lots and which she claims the right to enjoy as the the representations relative thereto at the owner of a residence on abutting lots. The time of the purchase. bill is filed to establish and enforce the restriction claimed to have been imposed by the owners on the sale of these Clinton avenue lots by the general building plan, as declared and announced by the husband and made in connection with the sale by reference to the map, and to require these adjoining lots to be sold as abutting lots.

A motion to strike out the bill for what of equity is made, and the reason mainly relied on at the argument is that no contract or agreement, in reference to the sale of the lots as abutting lots, enforceable against Mrs. Sanford, appears in the bill. It is claimed that the alleged building plan set out in the bill appears to have been made or

[2] Restrictions under a general plan adopted by the owner for the purpose of selling lots may in equity be imposed upon lands of the owner, extending beyond the express restrictions contained in the deeds to a purchaser, and on the doctrine of implied covenants. Lennig v. Ocean City Association, 41 N. J. Eq. 606, 608, 7 Atl. 491, 56 Am. Rep. 16 (Errs. & App.); Herold v. Columbia Investment Co., 72 N. J. Eq. 857, 860, 67 Atl. 607, 14 L. R. A. (N. S.) 1067, 129 Am. St. Rep. 718, 16 Ann. Cas. 580 (Errs. & App. 1907); Tallmadge v. East River Bank, 26 N. Y. 105 (1862).

In this case (heard as on demurrer) the imposition of the restriction on the sale of

the corner lots by the general plan, in connection with the map, and the special representations at the time of the sale must be taken as admitted. But as it sufficiently appears by the bill that these restrictions on the adjoining lots, now solely owned by the defendant, were not imposed by a conveyance or instrument in which her husband joined, and which was acknowledged by the wife as a deed, the question is whether the wife's contracts, representations, or acts of other kinds imposing such restrictions are not within the exception of the fourteenth

section.

[3] In my judgment they are not, for the reason that this provision of the fourteenth section was, I think, one which related only to the character of conveyances and instruments which were intended to be the means employed for conveying or incumbering the legal or equitable title of a married woman in the lands, and to prescribe the formalities for such conveyance or instrument, if made. It was not intended, in my judgment, to restrict the power of the wife, under the fifth section, to enter into such obligations and contracts, express or implied, as would be enforced by a court of equity, independent of their being created by a conveyance or other instrument.

which would have been binding on her as a feme sole, and which may be enforced without requiring any conveyance or other instrument.

The motion to strike out must be denied, and the bill should be answered.

(83 N. J. Eq. 472)

HARRIS et al. v. PEARSALL (Court of Chancery of New Jersey. Aug. 31, 1914.)

-ENFORCEMENT.

1. MORTGAGES (§ 318*)-RELEASE-COVENANTS
Where a mortgage provided that any per-
son acquiring 2,500 square feet of land cover-
ed might at any time tender the money and have
the benefit of the clause for release of such por-
tion, such provision constituted a continuing
covenant on the part of the mortgagee to re-
lease to any purchaser of 2,500 square feet or
more the amount so purchased on tendering the
proportionate part of the mortgage debt.
Cent. Dig. 88 956-961; Dec. Dig. § 318.*1
[Ed. Note.-For other cases, see Mortgages,
2. SPECIFIC PERFORMANCE (§ 134*)-COSTS.
Where suit was instituted to compel specif-
ic performance of a mortgagee's covenant to
release parts of the property on tender of a
proportionate amount of the mortgage debt, the
bill would be regarded as a suit for specific per-
formance and not a bill to redeem, and defend-
ant having answered denying complainant's
right to a release, and been cast, costs would
not be awarded to either party.

[4] Had the defendant, as a feme sole, imposed the plan and entered into the restric- formance, Cent. Dig. § 441; Dec. Dig. § 134.*] [Ed. Note. For other cases, see Specific Pertions alleged in the bill, there would be no question of the right of a court of equity Bill by Walter J. Harris and another to enforce the restrictions by injunction, in- against Leigh M. Pearsall, for specific perdependent of any conveyance or other instru-formance. Decree for complainants.

T. A. Spraggins, of Jersey City, for complainants. Lloyd Thompson, of Westfield, for defendant.

STEVENSON, V. C. (orally). I shall dispose of this case without regard to technicalities. There are a number of technical questions which arise in the case. We have two parties suing as complainants, whose interests are entirely distinct. No objection has been made to the bill on the ground of multifariousness or misjoinder, and this is the sort of a case which very conveniently can be brought in that way, although an accurate analysis of the case would disclose two separate causes of action, which do not corelate. There is no difficulty in making a decree which covers the cases of both of these parties complainant as to their respective lots.

ment creating them, and in my judgment the constructing of the two sections together, as applied to the facts in the present case, is that the wife's contracts or obligations, which relate to lands which she owns or in which she has an interest, are enforceable in equity to the same extent as if she were a feme sole, with the qualification that if, as against a feme sole, the creation or enforcement of such contracts requires a conveyance or other instrument, then, in the case of a married woman, this conveyance or instrument must be executed with her husband as neretofore, otherwise it cannot be created or enforced. But where a feme sole in equity, without a conveyance or other instrument, would be required by injunction to specifically perform a contract, and this performance does not require the execution of a conveyance or other instrument, then a mar- [1] I shall construe the bill, not as a bill ried woman in similar circumstances may be to quiet title, but as a bill to redeem, or as required to perform the contract. This con- a bill to compel the specific performance of struction prevents any decree for specific per- the covenant contained in the mortgage, and formance of a contract for conveyances of my conclusion is that this clause in the mortland by a married woman in which the hus- gage is not limited at all to any period, is band did not join, as was held by V. C. Ste permanently attached to the mortgage, and vens in Corby v. Drew, 55 N. J. Eq. 387, 391, follows it as long as the mortgage exists, 36 Atl. 827 (1897), but does not prevent the and that any person who acquires 2,500 enforcement by this court by injunction of square feet of land covered by that mortgage restrictions as to her lands under a building may at any time before the mortgage comes plan, made by her as a married woman, due, or afterwards, come forward and tender *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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