Chancery in favor of complainant, he ap- be paid.. That is to be proved. It will include peals. Modified and affirmed. Vice Chancellor Stevens sent the case to a special master, as stated below: I have taken the pleadings in this case home with me and read them over carefully, and it is perfectly evident that an account must be taken by a master. There is practically no dispute between the parties with reference to the house occupied by complainant. It appears that complainant was employed by Mr. Balch to construct some houses in Maplewood, and, shortly after the employment began, complainant informed Mr. Balch that he desired to have a home of his own, and thereupon Mr. Balch purchased a home for $4,275, paying $500 in cash and giving his own mortgage for the balance. On that mortgage I understand Mr. Balch to say in his answer he has paid $750, leaving the mortgage debt $3,000. There is no dispute with respect to the trust. This is what the defendant says: "Complainant is not entitled to any money from him and he holds the title to said premises as security for the amount due from complainant." That is a distinct admission that he holds in trust. The only dispute between the parties is with reference to whether Mr. Balch has in his hands enough money to pay for this property, or whether he has not. Complainant alleges that he has in his hands $5.900 still unpaid. Defendant denies that and says that he has kept an account of the transactions and that complainant has not enough money in his hands to entitle him to a conveyance. Under these circumstances, the usual course is to refer the account to a master to determine how much, if anything, the defendant owes the complainant and what is still payable on this mortgage. Mr. Smith: If your honor please, I should like to say, with respect to your honor's conclusions as to the admission of the trust, it was not the intention of the defendant, in setting up the allegation respecting the manner in which his property was held, to avoid the necessity of the complainant proving this trust relationship. The answer was drawn for the purpose of showing the relationship to be that of debtor and creditor, and for the purpose of putting upon the complainant the necessity of proving the trust relationship for the purpose of enabling the defendant to say that this agreement, being one which he as the defendant denies, being an agreement by parol, was therefore void on the ground that if it was an express trust it could not be proven by parol, if it was a resulting trust it could be only for the amount of money advanced at the time of the delivery of the deed by the vendor to the alleged trustee. He shall also be in the position of denying the agreement, and I understand that your honor's conclusion is not that the agreement was made. The Court: I do not think there is any doubt about the trust; there is a distinct admission. Mr. Smith: That the agreement is made? I think it is denied. The Court: Defendant says in his answer: "Complainant is not entitled to any money from him, and he holds the title to said premises as security for the amount due him from complainant." Mr. Smith: It is stated, if your honor please The Court: Well, you cannot get rid of that allegation; it is just as plain as two and two are four. I am going to send this case to a master. Mr. Smith: May I understand just what that account will contemplate? Will it contemplate the matter of the building of the houses, assuming that the agreement for the payment of $50 per house was in fact made, as to how nany houses were built? The Court: Yes, it will include everything. the entire account between complainant and defendant. Mr. Smith: Will it not include the question of whether or not the agreement was made? The Court: The defendant admits enough to show that he holds that property in trust; he says he does, and he not only says that, but h says that he has for six or seven years reserved out of complainant's wages enough money to enable him to pay the taxes and the interest on that mortgage. Now what admission could be more explicit or more satisfactory than that? Mr. Smith: With the express understanding that he should be paid out of the complainant's wages. The Court: He took it out of complainant's wages. Mr. Smith: There is no question about that. The Court: Then he admits the trust; and not only that, but that complainant has with his permission entered into possession, and that he, the defendant, has deducted from complainant's wages enough to pay taxes and interest. The relation is not that of landlord and tenant, but that of vendor and purchaser. The only doubtful question between the parties is whether the complainant is a creditor or not. Of course, the defendant cannot be compelled to convey until he is completely paid. If the state of the account be as the defendant claims it is, he has not been completely paid. Mr. Smith: I want to get your honor completely. If the proof is that the houses are the number which the complainant alleges, that practically is the only question which is in your honor's mind. The Court: I do not know anything about it. I do not know what the agreement as to compensation was. I do not know whether complainant was to receive $50 per house in addition to his wages or not; that is a matter of proof. The master will do what every master does when an account is referred to him; he will consider the disputed items, and say whether they ought to be allowed or not. We want a competent master in this case, and, if Mr. Hugh B. Reed is unobjectionable to the parties, I would suggest that the reference be to him. The opinion of Vice Chancellor Stevens on confirmation of the master's report was as follows: I think the conclusions of the master are warranted by the evidence. In stating the account the master has, however, charged the defendant with interest on the $50 due upon the completion of each house, from the time it was completed. It seems to me that it was not intended that defendant should pay to complainant each $50 as it became due. He was to hold complainant's commissions until a sufficient sum was accumulated to enable him to pay off the mortgage. Being in no default, he was not chargeable with interest. Interest is given only as a matter of contract or because of some default. When the sums earned amounted to $3,000, it would have been defendant's duty to have discharged the mortgage, assuming it to have been due, had complainant so requested. Complainant did not so request. On the contrary, he allowed defendant to deduct suficient from his wages to pay interest and taxes. Under these circumstances. I think the equity of the case will best be met by allowing no interest until demand made, and stating the account as between trustee and cestui que trust; that is, charging the defendant with what he received, and allowing him for what he paid out. It is admitted, as I understand, that two $50 items were inadvertently omitted by the master. and that they should be added to the sum due. I do not suppose it will be necessary to re-refer the account. With the aid of the present report, counsel can easily agree upon the items. off the mortgage, if due, and to convey the property to complainant within 30 days from its 'date, and to pay the balance owing to complainant within the same time. If defendant should neglect or refuse to do so, then complainant should have leave to apply for further directions and relief. Frank Bergen, of Newark, for appellant. ent. WHITE, J. This is a fact case. There was ample evidence to support the express findings of fact in favor of complainant by the special master, who had the advantage of seeing the witnesses and observing their manner of testifying, and the Vice Chancellor has affirmed those findings. An examination of the printed evidence has not convinced us of error in this respect. From these findings, taken in conjunction with the allegations of the bill admitted by the answer, it appears that defendant, an operative builder, employed complainant as carpenter foreman, and in effect general superintendent and manager of a building enterprise, and entered into a verbal agreement with him to pay him, in addition to his wages of $4.20 per day, a bonus of $50 for each house which should be built; that when 10 houses were completed defendant, at complainant's request, purchased for complainant a home for the latter and his family to live in, at the purchase price of $4,250, applying the $500 bonuses on the 10 completed houses towards the purchase money, but taking title in his (defendant's) own name, and giving a mortgage for $3,750 to the vendor for the remainder of the purchase price, the arrangement with complainant being that future bonuses as earned should go towards completing payment of said purchase price; that complainant forthwith took possession of the house and has occupied it ever since as his home; that defendant deducted from complainant's weekly wage envelope for a while $5 per week and afterwards $4 per week to cover, as defendant said, the interest on said mortgage and the taxes; that, upon 15 more houses being completed, de fendant on his books credited complainant with $750, being the bonus of $50 per house so earned; that there have since been constructed sufficient houses to entitle complainant, on an accounting, at the bonus of $50 per house, to have his said home conveyed to him free of the mortgage and to be paid $1,150 beside. A decree to this effect was entered in the Court of Chancery, and complainant appeals therefrom because interest was not allowed on each $50 bonus from the time it was earned (as was allowed by the special master, but denied by the Vice Chancellor), and also because he was not allowed $100 per house for a part of the houses which he claimed were constructed under an agreement for a $100 instead of a $50 bonus The finding of fact by the special master, affirmed by the Vice Chancellor, against the latter contention, in which finding we concur, disposes of the $100 per house claim. [2] With the interest claim, amounting to $873.90, however, we agree, and the decree will therefore be modified by adding that amount to the cash sum therein decreed to be paid by defendant to complainant. Complainant was charged interest on the mortgage, the principal of which should have been reduced by the bonuses as earned. We think the failure to reduce the principal entitled complainant to interest. No demand was necessary. It was defendant's duty as trustee to apply the bonuses as earned. [3] The defendant also has appealed (in No. 34 of this term) from the decree on the ground that it is contrary to the statute of frauds, which was pleaded, and, as to part of the decree to the statute of limitations, which was also pleaded. As to the statute of frauds, we think that, as to the verbal arrangement for the purchase of the home, what was done in pursuance of that arrangement gave rise to a constructive trust in favor of complainant, of Rogers v. Genung, 76 N. J. Eq. 306, 74 Atl. 473, and Harrop v. Cole, 86 N. J. Eq. 250, and that the case falls within the doctrine der the ban of the fifth paragraph of the [1] It is also urged that the case falls untion upon any agreement not to be performed statute of frauds, which prohibits any acwithin one year unless the same or some memorandum or note thereof be in writing signed by the party to be charged therewith. for this provision of the statute to apply, it must appear that the parties intended when they made the contract that it should not be performed within the year. If this does not is one which, taking in consideration the expressly or clearly appear, and the contract subject-matter, may be performed within the year, the statute does not apply, although in fact a longer time was actually taken in performance. We disagree with this contention. In order Eiseman v. Schneider, 60 N. J. Law, 291, 37 Atl. 623; Devalinger v. Maxwell, 4 Pennewill (Del.) 185, 54 Atl. 684; Page on Contracts, §§ 668, 674, and 675. With the modification herein directed the appeal in No. 31 is affirmed, but without MINTURN, J. The suit was in the nature of a forcible entry and detainer; its distinctive variation being that the parties were reversed, i. e., the tenant sued the landlord for failing to deliver possession of the demised premises, and attempts to sustain his action under the provisions of the act concerning forcible entry and detainer. 2 C. S. 2598. The complaint alleges the agreement of hiring of a dwelling house in the township of North Bergen, and the payment of one month's rent thereunder, and then proceeds to allege the placing by the defendant of a padlock on the apartment door, and the use of force and threats to prevent the plaintiff from taking possession; also, notice by plaintiff of a demand for possession served upon the defendant; and then concludes that defendant "willfully with force and strong hand holds and keeps possession," by reason whereof he is guilty of an unlawful detainer. The jury found defendant "guilty of unlawful detainer whereof the complainant hath charged him," and judgment was accordingly entered. The jurisdiction of the district court to entertain such a suit is challenged in limine; but we do not deem it necessary to pass upon that question, since the more fundamental inquiry is presented whether the statute giving the right of action concedes a similar right to one occupying the legal status of this plaintiff. The district courts are specifically given jurisdiction of this class of action, by the statute creating them. 2 C. S. 1962. Whatever legal basis for a claim of this nature the plaintiff has as a tenant against his landlord must be found in the statute creating the right of action; for concededly at common law his action civiliter was in trespass quare clausum fregit, ejectment, or Butts v. Voorhees, 13 N. J. Law, 13, 22 Am. Dec. 489. case. The fifth section of our statute concedes the right and remedy to a "landlord or landlords, lessor or lessors, or the person to whom the remainder or reversion" of the locus in quo shall belong. The defendant in the action is defined to be "a tenant or tenants for a term of life or lives, year or years, or other person or persons who are or shall be in possession," of the locus in quo. Manifestly this record presents a situation of the reverse order, and. without considering the other questions presented in the briefs, the conclusion must be obvious that the case, as one of unlawful detainer, was coram non judice. In the language of Elmer, J., in Houghton v. Potter, 23 N. J. Law, 341, "the object of the statute was to give a summary and easy remedy to a landlord whose possession was unlawfully detained from him." Also, Barnes v. Nicholson, 2 N. J. Law, 307. The judgment will be reversed. (90 N. J. Eq. 11) (No. 44/453.) WRIGHT et al. v. PELL et al. 1. CURTESY 1918.) Oct. 22, 11(3)-CONVEYANCE-FAILURE OF HUSBAND TO JOIN. Wife's deed, in which husband was not made a party, did not convey husband's right of curtesy, although husband subscribed. 2. HUSBAND AND WIFE 193-CONVEYANCE BY WIFE-NONJOINDER OF HUSBAND-TITLE OF GRANTEE. Where husband did not join in wife's conveyance of her property, the grantee did not receive a legal title to the land, but merely an equitable pledge. 3. MORTGAGES 497(2) — DECREE OF FORE CLOSURE. Where mortgagee had merely equitable title to land, mortgagor's husband not having joined in conveyance, a decree foreclosing the husband's equity of redemption in the mortgaged premises does not serve to give mortgagee a legal title to land; such decree having no effect on husband's curtesy, though bill alleged joinder of husband in wife's conveyance, which allegation husband admitted by permitting decree pro confesso to be taken against him. 4. MORTGAGES 454(1) BILL PRAYING FORECLOSURE-ADMISSION OF ALLEGATION. Where husband did not join in wife's conveyance to mortgagee, husband's admission, by permitting decree pro confesso to be taken against him, of allegation in bill praying strict foreclosure, that he had joined in conveyance, does not serve to give mortgagee legal title to premises upon a decree debarring and foreclosing right of redemption therein. Bill by William E. Wright and others against Thorold W. Pell and others. Decree for defendants. Frank Benjamin, of Newark, for complainants. Arthur T. Vanderbilt, of Newark, for defendants. STEVENS, V. C. [1] This is a bill for the specific performance of a contract to convey land. The defense is defective title. The title stands thus: Emily J. Smith, by deed, in form a warranty deed, conveyed the land in question to James N. Wright to secure a loan of $1,050. He gave her an agreement of defeasance. Her husband, Thomas, was not a party to the deed, but he subscribed it. Not being a party to it, the deed did not convey his right of curtesy (Jason v. Johnson, 74 N. J. Law, 530, 67 Atl. 42, 122 Am. St. Rep. 402), and did not vest in the grantee more than an equitable interest. By bill of strict foreclosure, Wright sought to foreclose the interest of the heirs of the grantor, she being dead, and of her husband and certain of her husband's creditors. Following a decree pro con., there was a decree "that the deed and agreement of defeasance be decreed to be a mortgage upon the land and premises described therein," and there was a reference to a master to ascertain the amount due. The final order was "that the defendants do from henceforth stand absolutely debarred and foreclosed of and from all equity of redemption of, in, and to the said mortgaged premises." cree. confesso to be taken against him. It was undoubtedly admitted for the purposes of that suit, and, had it been decreed therein that Smith had conveyed, the decree would have bound him, although founded on an erroneous conception of the evidence and of the law. But the chancellor made no such deHe only decreed strict foreclosure of such equity of redemption as the several defendants had. Smith had no equity of redemption; he had a curtesy. There is, therefore, no decree to operate by way of estoppel. Is, then, the allegation, in itself, an estoppel in a subsequent and independent proceeding, not because Smith himself made the admission, but because he allowed the foreclosure bill to be taken as confessed against him? The case is at best one of implied admission, prima facie proof, but an admission which an inspection of the deed would show to have been contrary to the fact. It is doubtful, however, whether it could be held to be an admission at all. It is stated in Taylor on Evidence, §§ 859, 1753, that bills in chancery are not admissible as proof of the admissions they contain, "since the facts stated therein are regarded as nothing more than the mere suggestions of counsel." The reason given applies with peculiar force to the case in hand. For these reasons, I think that defendant cannot be compelled to take the title. (92 N. J. Law, 34) [2] The objections to the decree for specific performance are: (1) That Mr. Wright cannot convey the legal as distinct from the equitable title; and (2) that the estate by the curtesy of Thomas C. Smith (Mrs. Smith having died) has not been foreclosed. Both of these objections seem to me to be well taken. What Mr. Wright got from Mrs. Smith was not a legal title (her husband not having joined in the deed), but an equitable pledge. HERZOG'S CLOAK & SUIT CO., Inc., v. Schickhaus v. Sanford, 83 N. J. Eq. 454, 91 FEDORKO. Atl. 878; Phelps v. Morrison, 25 N. J. Eq. (Supreme Court of New Jersey. Nov. 11, 1918.) 538. I am at a loss to understand how the decree of strict foreclosure could operate to give Mr. Wright more than Mrs. Smith gave him; that is, an equitable interest, in contradistinction to a legal one. It is her equity of redemption in what she gave him that is cut off, and what she gave him was an equitable and not a legal right. The present situation of the title seems to be an irredeemable equitable estate vested in Wright and a bare legal title outstanding in Mrs. Smith's heirs, conveyance of which may, of course, be compelled. [3, 4] In the second place, there is nothing to indicate that Mr. Smith has lost his curtesy. It is self-evident that he did not part with it by deed, because he did not make a deed. Counsel's contention that the effect of the strict foreclosure was to deprive him of it is based, and based only, on the opening paragraph of the bill praying strict foreclosure. The allegation, contrary to the admitted fact, is as follows: "That Emily J. Smith, being indebted to your orator [James N. Wright] in the sum of $1,050, with her husband, Thomas C. Smith, conveyed by warranty deed," etc. This allegation, counsel argues, was admitted when Smith permitted a decree pro (Syllabus by the Court.) REPLEVIN -- 11(2) EXECUTION 54 PROPERTY SUBJECT POSSESSION AND DE MAND. A bailee, intrusted with goods to be made up, who is to be paid for his labor, has a property in the goods which is subject to levy, and a constable levying thereon by virtue of process against the bailee has a lawful possession, which makes necessary a demand for the goods before the bailor can maintain replevin. Appeal from Circuit Court, Hudson County. Suit in replevin by the Herzog's Cloak & Suit Company, Incorporated, against Joseph Fedorko. Judgment for defendant upon a directed verdict, and plaintiff appeals. Modified. The plaintiff had intrusted certain cloths and linings to one Weiner, to be made into The title to the material, it is said, was to ladies' suits and returned to the plaintiff. remain in the plaintiff, and Weiner was to be paid for his work. The defendant, Fedorko, a constable, seized the goods by virtue of writs of attachment against Weiner out of the Bayonne district court. The plaintiff brought this suit in replevin against Weiner and the constable. Weiner is not shown by the record to have been summoned, to have en that the judgment in this case should not be in such form that it might hereafter be claimed as an estoppel on the question of title. appeared, or answered. The constable an- not settle that, but only the right to the swered setting out the attachments and that immediate possession, and care should be takhe had levied upon the goods and chattels of Weiner described in the complaint, and that they were the property of Weiner and not of the plaintiff. The trial judge directed a verdict for the defendant, because no demand was made for the return of the goods before this action was brought. Argued June term, 1918, before the CHIEF JUSTICE and SWAYZE and TRENCHARD, JJ. Theodore Rurode, of Jersey City, for appellant. Alfred Brenner, of Bayonne, for respondent. Let the judgment be modified accordingly. The defendant is entitled to costs as he substantially prevails, and the error in the form of the judgment was not appealed from. (92 N. J. Law, 31) CENTRAL SAV. BANK CO. v.. BARBER et al. (Supreme Court of New Jersey. Nov. 11, 1918.) (Syllabus by the Court.) 159-NOTE-CON SWAYZE, J. If the constable's possession 1. HUSBAND AND WIFE was lawfully obtained, a demand was necessary. He claimed by virtue of writs against Weiner and clearly he had the right by virtue of those writs to levy on any interest Weiner might have in the property. Whether a mere bailee has an interest in the bailment which is subject to levy is some-er, times a question of nicety as may be seen by comparing Dean v. Whitaker, 1 C. & P. 347, 12 E. C. L. 208, with Arnold v. Hatch, 177 U. S. 276. 20 Sup. Ct. 625, 44 L. Ed. 769. In the present case we think the bailee's interest was sufficient to be subject to levy. We assume that the contract was as the plaintiff claims and that the title remained in the plaintiff. It was, of course, subject to the right of Weiner to make up the goods into ladies' suits and to his lien thereon for his pay. There was nothing to show a termination of this special property and it may SIDERATION-DOWER RIGHTS. An inchoate right of dower is a valuable, subsisting, separate, and distinct interest, the enlargement of the value of which is a legal consideration which will support a promissory note by a married woman, even though she signs the note as surety, accommodation makor indorser for her husband. (Additional Syllabus by Editorial Staff.) 2. BILLS AND NOTES 516 ACTION ON NOTE-BURDEN OF PROOF. Where the payee of a note produces a promissory note with proof that it is unpaid, tled to a verdict, unless a defense is established. he has made a prima facie case, and is enti Suit by the Central Savings Bank Company, a corporation, against Bernice Barber and George S. Barber. Verdict for plaintiff. On defendant's rule to show cause. Rule made absolute. JUSTICE, and SWAYZE and BERGEN, JJ. King & Vogt, of Morristown, for plaintiff. Randolph Perkins, of Jersey City, for defendant Bernice Barber. have had a value available for Weiner's creditors. At any rate, we see no reason to think that it was not sufficiently tangible to be subject to levy. The question does not arise which was present in Farrel v. Colwell, 30 N. J. Law, 123, and in Hopkins v. Bishop, SWAYZE, J. In 1913, the defendant Ber91 Mich. 328, 51 N. W. 902, 30 Am. St. Rep. nice Barber, and George S. Barber, her bus480, where the officer seized property of one band, signed a note for $5,000, to which person under process against another. It George's mother also became a party. The was therefore right to direct a verdict for Central Savings Bank Company advanced the the return of the goods. But the judgment amount to George. When the note came due, entered sets forth that the verdict was gen- George's mother paid $2,500, and the note in erally in favor of the defendant and against suit was discounted to take care of the difthe plaintiff, that the plaintiff take nothing ference. Both notes were signed in this by its writ, and that the defendant have a state. Mrs. Barber received no cash. The return of the goods and chattels, etc. This plaintiff is an Ohio bank; the notes were was not the verdict and should not be set delivered in Ohio, and the $5,000 was borforth as such. The judginent thereupon was rowed for and applied to the payment of a that the plaintiff be dismissed and that the mortgage on real estate, the title to which defendant have a return of the goods and was in Mr. Barber. Mrs. Barber testified chattels aforesaid and recover his costs. But that the amount and date were blank when this was not the proper judgment. The judg- she signed, and that she signed at her husment should be that the plaintiff take noth- band's request. The learned trial judge told ing by its writ, that the defendant go thereof the jury that the signature on the blank pawithout day and that he have a return of the per, delivered by the person making the siggoods, and recover his costs. The matter is nature in order that the paper might be conimportant as the issue joined in the case was verted into a negotiable instrument, operated on the question of title and the verdict did as a prima facie authority to fill up such |