acknowledgment, and the certificate was writ- | sign the deed, he told him that he had a ten by him, although he said he had no recollection of the circumstances under which the acknowledgment was made, and frankly said that he did not know either Mrs. Gould or her husband, and he said that the facts stated in the certificate to the best of his knowledge were true. I do not see why he would not assert unequivocally that they were true, in reliance upon his certificate; but, being a cautious man, doubtless, and not remembering the incident at all, he made the somewhat stereotyped reply that the facts were true to the best of his knowledge. He should, it seems to me, have been willing to have stated that they were true, because of his certificate. However, I do not think that the answer creates any uncertainty as to the fact, and I am prepared to believe, and do believe, that Mrs. Gould and her husband not only signed, but also acknowledged, their deed made to Hurley. The facts and circumstances concerning the signing and acknowledgment of the deed in this case are, under the law, as enunciated by our courts, sufficient to prove its due execution and to uphold the transaction. Tooker v. Sloan, 30 N. J. Eq. 394; Black v. Purnell, 50 N. J. Eq. 365, 24 Atl. 548. That the deed from Mrs. Gould and husband to Hurley was delivered is too plain, it seems to me, to admit of controversy. It will be remembered that F. J. Anspach, her father, put the title in Mrs. Gould without any consideration passing from her to him; and she, it would appear, willingly executed the deed to Hurley at her father's request, and parted with the deed to her father, if, indeed, she ever had it in her possession, for her father inclosed it to Mr. McDermott in his letter to him of July 1, 1901, and he (Mr. McDermott) retained it until he lodged it for record on June 11, 1907, and produced it upon the trial. It is certainly to be presumed that Mrs. Gould gave the deed to her father the moment she signed it, or left it with him, which amounts to a delivery, and parted with all control over it. This constitutes a valid delivery. Jones v. Swayze, 42 N. J. Law, 279; Vreeland v. Vreeland, 48 N. J. Eq. 56, 21 Atl. 627. In her bill and on the argument it was claimed that Mr. Anspach had made a gift of these lots to his daughter. Her mother, the widow of F. J. Anspach, was sworn and testified that she recalled the signing of a paper by her daughter with reference to a trolley consent, and that at the time he procured his daughter's signature the father said that it would benefit her lots at Spring Lake. Assuming that the witness accurately remembers what Mr. Anspach said some eight years before she testified, that loose declaration cannot be admitted to prove a gift of these lots to Mrs. Gould, nor can the statement of Mrs. Gould's former husband to the effect that, when Mr. Anspach asked him to splendid opportunity to dispose of the Spring Lake property for Edith's advantage, or his other statement that Mr. Anspach once told him that he had given her some property at Spring Lake. Evidence of oral admissions and declarations belong to a class of proofs which should be received with great caution. Even when they proceed from the mouths of honest and disinterested witnesses, they are liable to imperfection and error; and a word, or a look, misunderstood, will produce upon the mind of the hearer an impression entirely different from that which the speaker intended to convey. Jones v. Knauss, 31 N. J. Eq. 609, 616. Both of the parties testifying to these statements are apparently interested in the complainant; Mrs. Anspach, the mother, naturally so, and Mr. Gould, the former husband, although divorced, by his manner upon the stand and his apparent friendliness with his former wife in the courtroom, gave every evidence of a lingering interest in her. I do not say that these witnesses have willfully misrepresented what the decedent said, but my judgment is that they are mistaken or have misinterpreted the looks or language of Mr. Anspach when he made the declarations to which they testify. These declarations are meager and of an inconclusive character, and certainly, in view of the other facts of the case, they cannot be given controlling effect, but must be subordinated to what appears to me to be the true facts. It may be asked why Mr. Anspach put the title to these lots in the name of his daughter. The answer is probably to be found in the two facts: One, that his wife refused to sign a deed at his request, and this about the time the conveyance from father to daughter was made; and, the other, that a judgment had been recovered against Mr. Anspach in Pennsylvania by a gentleman named Paul for a large amount of money, and Mr. Paul about the time of the conveyance was pursuing Mr. Anspach in New Jersey by attachment. Besides, Mr. Anspach was in the habit of placing the title to properties in his brother and other members of his family, for his own purposes and convenience. If I be right in my conclusion that Mrs. Gould executed, acknowledged, and delivered the Hurley deed, she has no interest in the claim of the estate of her father to ownership in the seven lots con veyed by Hurley to James Anspach, who, as before stated, admits that he has no beneficial interest in them, and that he holds the title for the estate of his brother. Hurley and wife have executed to Mrs. Gould a mortgage on the lot remaining to him. The mortgage bears even date with the deed from Mrs. Gould to him, and is for $450. It is admitted that counsel made a mistake in drawing the mortgage, and that it should have been for $550. Another mistake was therefore the costs of all parties, except Mrs. Gould, will be ordered to be paid out of his estate. Mrs. Gould will be decreed to pay her own costs. Whether Mrs. Gould's payment of taxes upon the premises is to be considered as compulsory, in which event she will be entitled to be subrogated to the lien of the borough of Spring Lake and to be repaid those taxes, or whether her payment of them was voluntary, is a question which was neither raised nor discussed upon the argument. It is important, and, as a fairly large sum is involved, I will hear counsel for the complainant, upon notice to the defendants, as to whether or not Mrs. Gould is entitled to subrogation and repayment with reference to the taxes. putting it in the name of Mrs. Gould, for in his letter of instruction to counsel on July 1, 1901, Mr. Anspach expressly directed that the mortgage be made in his own favor, meaning, of course, his own name. Mrs. Gould claims that, if her father were attempting to put title out of himself and in her for the purpose of forestalling Paul in the collection of his judgment, the executors of her father's estate cannot recover the title from her because of the rule that a conveyance made in fraud of creditors, while void as to them, is good inter partes, as the law will not aid a fraud doer, but will leave the parties to the transaction in statu quo. This might be a serious consideration in the case sub judice if if were not for the fact that Mrs. Gould herself made a conveyance of the property to a third person, namely, Hurley, for her father, and therefore, if the rule is to be applied at all, it will be in aid of a status which leaves KARR v. NEW YORK JEWELL FILTRAher divested of title. It is also claimed on behalf of the complainant that the minds of Mr. Anspach and Hurley never met, and that a complete agreement for sale between them was not made. This is a question in which the complainant is not concerned. It is true the memorandum signed by Hurley was not enforceable for want of particulars as to the time the mortgage should run and the rate of interest it should draw, etc. (Potts v. Whitehead, 20 N. J. Eq. 55; Moore v. Galupo, 65 N. J. Eq. 194, 55 Atl. 628); but the defendants appear to have no quarrel with each other on that score, and, besides, Hurley has actually executed a mortgage to Mrs. Gould. It can be decreed to be reformed if necessary by making it stand as security for $550, instead of $450, and Mrs. Gould can be decreed to assign it to the executors of her father's estate. There will be a decree: That the complainant has no right, title, or interest in any of the eight lots in question; that the title of Hurley to the lot which remains in him is absolute; that the bond from him and the mortgage from him and his wife to the complainant be canceled; that he execute a proper bond and mortgage to the executors of the estate of Frederick J. Anspach, deceased, for $550, secured on his lot, with lawful interest, unless it shall become necessary to decree a reformation of the bond and mortgage already made, in which event they will be reformed and ordered to be delivered; that the defendant, James Anspach, convey to the executors of the estate of Frederick J. Anspach, deceased, the seven lots, title to which were vested in him by the conveyance from Hurley and wife. The entanglement in which this affair has been involved was caused by the carelessness and loose methods of the late Frederick J. Anspach, owner of premises in his lifetime, and TION CO. (78 N. J. L. 198) (Supreme Court of New Jersey. June 8, 1909.) Courts (§ 6*)—JurisdictTION-LOCAL ACTIONS -INJURY TO REALTY. The courts of this state have no jurisdiction of an action on the case for negligent injuries to plaintiff's real property and building situated in the District of Columbia, by making excavations on adjacent property, and that plaintiff will be without a remedv, unless the court takes jurisdiction, is immaterial. [Ed. Note.-For other cases, see Courts, Dec. Dig. § 6.*] Action by Jacob Karr against the New York Jewell Filtration Company. On demurrer to pleas. Judgment for defendant on demurrer. The declaration contains three counts. The first count alleges that at the time of the injury complained of the plaintiff was seised of certain described property in the city of Washington, D. C., on which stood certain buildings, and that the defendant, with force and arms, broke and entered the close of the plaintiff, and did excavate thereon in such a manner as to weaken and injure the walls of the buildings, and to cause the same to settle, etc. The second count is not in trespass, but in case, and alleges that on the date in question the plaintiff was seised of the same tract of land, and that the defendant was engaged in the construction of a tunnel adjacent to the plaintiff's property, and it became and was the duty of the defendant to use due care, and to so excavate and construct said tunnel as not to interfere with or damage the property of the plaintiff; but that the defendant failed to exercise this care, and by reason of such failure the buildings on plaintiff's land were made to settle, and the walls and floors were cracked, etc. The third count alleges, as before, that the plaintiff was seised of the lands in question, that the defendant was en gaged in the construction of a tunnel, and that it was the duty of the defendant to excavate so as not to interfere with or damage the plaintiff's property, and that the defendant failed to support the ground around its excavation, and to support the property of the plaintiff, but excavated and tunneled in such a way as to deprive plaintiff's land of its support, causing his buildings to settle and walls to crack. To each of these counts the defendant interposes a plea to the jurisdiction on the ground that the cause of action set out in the respective counts accrued out of the jurisdiction of this court, namely, in the District of Columbia. To each of these pleas the plaintiff demurs, upon the ground that the declaration shows that the cause of action is of such a nature that it can properly be sued for, and action maintained thereon within this state, and within the jurisdiction of this court. Argued February term, 1909, before GUMMERE, C. J., and SWAYZE and PARKER, JJ. Collins & Corbin, for plaintiff. Chauncey G. Parker, for defendant. PARKER, J. (after stating the facts as above). The plaintiff concedes that the first count, which sets up a pure case of trespass quare clausum fregit, cannot stand. He maintains, however, that the causes of action set up in the second and third counts of trespass on the case should have the cognizance of this court, and it is intimated in the briefs that, unless this court does take cognizance of these causes of action, the plaintiff will be without remedy, on the ground that jurisdiction cannot be obtained over the defendant by service of process within the District of Columbia. TICE V. MOORE et al. (82.Conn. 244) (Supreme Court of Errors of Connecticut. 1. MECHANICS' LIENS (§ 111*) RIGHTS OF Under the Connecticut statutes relating to mechanics' liens, a subcontractor is only subrogated to the rights of the original contractor, so that where the contractor, without fault on the owner's part, has abandoned his contract before substantial performance, so that nothing is due him from the owner under the contract, the subcontractors have no lien for labor or materials: furnished. [Ed. Note. For other cases, see Mechanics' Liens, Cent. Dig. §§ 144-146; Dec. Dig. § 111.*]. 2. CONTRACTS (§ 295*)-BUILDING CONTRACTS.{ -PERFORMANCE. Where a contractor agreed to build a house for complainant for $3.945, and abandoned the contract when the building was in such a stage: that it would require an expenditure of $2.200 to complete it, there was no substantial perform ance. [Ed. Note. For other cases, see Contracts, Cent. Dig. § 1353, 1356, 1362; Dec. Dig. 295.*] 3. MECHANICS' LIENS (§ 115*)-INVALIDITY➡ PAYMENTS. Under Gen. St. 1902, § 4138, which provides that payments to a contractor, not made in good faith or made before due, without giving notice of the intended payment to subcontractors known to be furnishing materials and labor, are void as against such subcontractors, a payment of $1,000 to a contractor, made in good faith, when it was due, and before the owner had knowledge that subcontractors were furnishing labor and materials for the work, was good as against such subcontractors. [Ed. Note.-For other cases, see Mechanics' Liens, Cent. Dig. 88 150-159; Dec. Dig. 115.1 4. MORTGAGES (§ 116*)-PROceeds. Where plaintiff permitted her contractor to raise money on her real estate with which to improve the same, and knew that the lender re tained from the proceeds a commission and cerplaintiff to the contractor as a part of the first tain expenses, all of which were chargeable by payment on the building contract, such items were properly treated, as against plaintiff, as a part of the first advance on the mortgage note by the lender. [Ed. Note.-For other cases, see Mortgages, Dec. Dig. § 116.*] 5. MORTGAGES (8 116*)-PROCEEDS-PAYMENT. We are unable to distinguish this case in principle from Hill v. Nelson, 70 N. J. Law, 376, 57 Atl. 411, approved by the Court of Errors in Doherty v. Catskill Cement Company, 72 N. J. Law, 315, 65 Atl. 508. The latter case is more nearly in point, as the declaration set up negligence and nuisance, rather than trespass. Doherty had an ice Where a loan was procured on plaintiff's pond, and the defendant carried on, upon a property with which to improve it, and the lendneighboring property, the business of making er agreed to pay the money to the contractor in specified sums as the work progressed, but cement, and permitted cement dust and instead paid $100 to the contractor before it fumes and smoke to escape, which plaintiff was due, and the contractor subsequently abansays injured and destroyed his ice, and in-doned the work before substantial performance, terfered with the use of the plaintiff's of the mortgage debt. such payment was properly disallowed as a part property for the purposes of an ice pond. 30 N. J. Law Journal, 114. As to the claim that the plaintiff will be without redress unless the court takes cog nizance of his suit in this state, we can only say that the same question was considered and disposed of by Justice Dixon in Hill v. Nelson, at page 378 of 70 N. J. Law, at page 411 of 57 Atl. There will be judgment for the defendant on the demurrer. [Ed. Note. For other cases, see Mortgages, Dec. Dig. 116.*] 6. BILLS AND NOTES (8 452*)-ConsideraTION-TRANSFER. ing contractor as a part payment on the contract price, and the contractor failed to substantially perform, but abandoned the work and absconded, the note was without consideration, and neither the contractor nor his transferee with notice could enforce it. Where plaintiff executed a note to a build [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 13742; Dec. Dig. § 452.*] •For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes: 7. HUSBAND AND WIFE (§ 169*)-WIFE'S SEP- [ployed to prepare the papers and there executARATE PROPERTY MORTGAGE TURE OF HUSBAND. SIGNA ed the new notes and mortgages, and Moore and the defendant Hall, who had become the owner of the $545 note, executed the releases of the former mortgages, and the conveyancers on August 14th caused the papers to be recorded in the proper order. The house was at this time roofed in, and the first payment from the W. T. Fields Company was due, and they paid $940 to the conveyancers, retaining, with the knowledge and consent of the plaintiff, $60 as commission. The conveyancers by order of Moore paid Hall the amount due upon the note for $545, paid $18 for insurance, and $18.10 for the expense of the preparation and recording of the conveyances, and the balance to Moore. The plaintiff had knowledge of these payments, and at the time was informed that the Fields Company would pay $1,000 more when the house was plastered, and another $1,000 when the house was completed, and assented to the arrangement. The Fields Company on August 23d, without the knowledge of the plaintiff, paid Moore $100. She understood and believed that she would not become liable on the note for $945 unless and until the house was completed, and Moore knew this. At the time of this transaction, the parties all knew that material and labor was being furnished in the construction of the house, but none except Moore knew by whom. On August 31st Moore transferred for a valuable consideration the note for $945, and assigned the mortgage securing the same to the defendant Hall. The court found that Hall took the mortgage knowing that the house was not completed, and that the plaintiff had received no consideration for the note except the contract with Moore, and knew of the equities existing between Moore and the other parties, and was not an innocent purchaser for value. On or about September 19, 1907, Moore abandoned his contract, left town, and has not been heard from since. At or about the same time, the subcontractors abandoned the work, gave notice of their liens, and filed liens on the plaintiff's The plaintiff on June 5, 1907, entered into a written contract with Moore to build a house upon a lot then owned by her in New Haven. At the time the contract was signed, she gave him two notes amounting to $3,945, the contract price for the house. One of the notes was for $3,400, the other for $545, each payable on demand to his order, the larger note being at 5 per cent. interest, and the smaller at 6 per cent., and each secured by a mortgage on the lot, that securing the larger note being the second mortgage. The contract recited that these two mortgages were given in consideration of the house be ing built by Moore and to compensate him therefor. The contract was the only consideration for the notes. Moore then contracted with different parties for the mason, carpenter, and plumbing work upon the house and for the lumber required in its construction. These parties began to furnish labor and materials in constructing the building and are parties to this action as claimants for mechanics' liens. After this work was begun, and before August 9, 1907, the W. T. Fields Company, at the request of Moore, agreed with him to make a loan of $3,000 at 6 per cent. to be secured by a first mortgage upon the plaintiff's property when the build-property. Moore's failure to complete his ing should be completed; the money to be advanced as the work progressed, $1,000 when the house was roofed in, $1,000 when it was plastered, and $1,000 when it was fully completed. Moore caused to be prepared a note for $3,000 at 6 per cent. payable to the W. T. Fields Company and a mortgage upon the plaintiff's lot to secure the same, another note to his own order on demand for $955 at 5 per cent., with a second mortgage on the plaintiff's lot to secure it, and releases of the mortgages which had been given him to secure the first two notes. He then informed the plaintiff that the orginal papers were wrong and would have to be changed, and that he had to have 6 per cent. On August 14, 1907, she at his request went to the offices of the conveyancers whom he had em contract was not due to the fault of the plaintiff. There is nothing due to him from her. The amount which would have been required to complete the house at the time of its abandonment would not have been less than $2,200. The cost and value of the work and materials which have gone into it is $1,854.65. All the defendants filed answers claiming liens. The W. T. Fields Company and Hall by virtue of mortgages, and the subcontractors for their work and materials as mechanics and materialmen, and asked for the foreclosure of the same. The court held: That the subcontractors had liens to the full amount of the labor and materials furnished by them in the construction of the building to the time when they abandoned it; that their liens had priority over the mort gage of the W. T. Fields Company; that | work remaining unpaid. Id. Our statute is there was due to the W. T. Fields Company of this class. Waterbury Lumber & Coal Co. upon their mortgage $1,000 only; and that nothing was due to the defendant Hall upon the mortgage for $945. Ward Church and Charles F. Clarke, for appellant Magdalena A. Tice. George E. Hall, Ernest L. Isbell, and John R. Booth, for appellant George E. Hall. Talcott H. Russell and George S. McLaren, for appellant W. T. Fields Company. Charles S. Hamilton, J. Birney Tuttle, and Charles A. Capen, for appellees. THAYER, J. (after stating the facts as above). The principal questions in this case are whether the subcontractors, who claim liens upon the plaintiff's real estate for labor and materials, furnished under contracts with the original contractor, in the construction of her building, are entitled to such liens, and, if so, whether those liens have priority over the mortgage of the defendant the W. T. Fields Company. The superior court held that they are entitled to such liens, and that the liens have priority over the mortgage. v. Coogan, supra. In the present case Moore, the original contractor, abandoned his contract wrongfully and without fault on the part of the plaintiff, and left her building incomplete and requiring an expenditure of at least $2,200 to complete it. The court has found that, nothing is due him. Under these circumstances he could be entitled to no lien under the statute upon the plaintiff's property, and it follows that the subcontractors are not. The plaintiff has apparently been enriched by labor and materials which they furnished, but they did not furnish them to her. To her they came into no contractual relations on which to found an equity for a reimbursement due to them from Moore. The payment of $1,000 made to Moore before he abandoned the contract was made in good faith when it was due and before the plaintiff had knowledge that these subcontractors were furnishing labor and materials for the work. No claim is or can be made that, under such circumstances, the subcontractors can claim liens to the amount of that payment by reason of section 4138 of the General Statutes of Statutes allowing liens in such cases are 1902, which treats payments not made in of two classes. In one the lien is allowed up- good faith, or made before due, without givon the ground that the subcontractor is equi- ing notice of the intended payment to subtably entitled to a lien which would other- contractors known to be furnishing materials wise attach in favor of the original con- and labor, as void against such subcontracttractor; in the other upon the ground that ors. The subcontractors' liens being void, the labor or materials furnished have so en- there is no question of priority between them hanced the value of the real estate that it and the Fields mortgage. would be inequitable to allow the owner to be due to the W. T. Fields Company upon its enriched at the expense of the subcontractor. mortgage note $1,000, and interest, thus alWaterbury Lumber & Coal Co. v. Coogan, 73 lowing the commission of $60 and the Conn. 519, 521, 48 Atl. 204. Under statutes amounts paid for insurance and expenses of of the latter class, the subcontractor has an the conveyancers, which the plaintiff claims independent right of lien, and is not simply should not have been allowed, and, disallowsubrogated to the rights of the contractor. ing the $100 paid by the W. T. Fields ComUnder such statutes it is held that the sub-pany to Moore on August 23d, which it claims contractor's right of lien cannot be defeated should have been allowed. The court found by the default, misconduct, or even the fraud The plaintiff's claim as to the commission of the original contractor. Berger v. Turn- and payments for insurance and expenses is blad, 98 Minn. 163, 167, 107 N. W. 543, 116 answered by the finding, which is that the Am. St. Rep. 353. Under statutes of the commission was retained with her knowlformer class, the subcontractor is simply sub-edge and consent, and that she gave an order rogated to the rights of the original contract- for the payment of $940, the balance of the or. If, had he paid the subcontractor, the $1,000 payment, and knew at the time that original contractor would not under the stat- the insurance and expenses were to be paid ute be entitled to file a lien for the amount out of it. All of these items were chargeable so paid, the latter is entitled to no lien. So by her to Moore as a part of the first payunder such statutes, where a contractor, with- ment and were understood manifestly by all out fault on the owner's part, has abandoned parties to be such. These items were prophis contract before its substantial comple- erly treated as a part of the first payment on tion, so that nothing is due him under his the mortgage note. It was the understanding contract, the subcontractors have no lien for of all the parties that, after the first paylabor or materials furnished by them. Lar- ment by the W. T. Fields Company, no furkin v. McMullin, 120 N. Y. 206, 209, 24 N. E. ther payments should be made to Moore by 447; Hollister v. Mott, 132 N. Y. 18, 21, 29 it until the house should be plastered. HavN. E. 1103. And this is so although the ex- ing made the payment of $100 to him before pense of completing the improvement accord it was due and without the knowledge of asing to the contract would be less than the sent of the plaintiff, it was properly disallowbalance of the contract price for the entire ed as a part of the mortgage debt. |