assumpsit. Thus it lies to recover money lent by the plaintiff to the defendant, or paid by the plaintiff on the account of the defendant at his request. 1 Ch. Pl. *99. In a case of a bill for an account of the profits of an estate, received by the defendant while the complainant was an infant, it appeared that the defendant had possession under an agreement constituting him a trustee for the infant. The bill was not filed until more than six years after the infant became of age, and it was held that the statute barred the action in equity as it would have barred a common-law action of account, as the complainant might have had his action of account at law, and there was therefore no necessity for his seeking relief in equity. Partridge v. Wells, 30 N. J. Eq. 176, at page 179. In this case (Partridge v. Wells) Vice Chancellor Van Fleet remarked: "The test, then, obviously prescribed by the rule is, Had the suitor a remedy at law which he has lost? If the complainant in this case had a complete remedy at law, which has been lost by lapse of time, he is not entitled to the remedy he seeks here." There can be no doubt of Mrs. Van Cleef's adequate and appropriate remedy in a court of law, in an action of assumpsit for money paid to the use of her mother, during the six years which elapsed next after the date of the transaction. This ground of objection, namely, that the statute of limitations is fatal to the relief sought by the defendant, Mrs. Van Cleef, on her cross-bill, being valid, the motion will prevail, and the cross-bill must be struck out.

It is unnecessary to consider the third ground of objection to the cross-bill, which, by the way, would not be considered in any event, as it is too vague and general.

Since the argument of this motion the death of the complainant has been suggested on the record. This being so, the order striking out the cross-bill may be entered nunc pro tune as of August 25th last, the day on which the matter was submitted. This is the usual practice. Dan. Ch. Pl & Pr. (6 Am. Ed.) *1017; Burnham v. Dalling, 16 N. J. Eq. 310.

(73 N. J. E. 697)

ROLL et al. v. EVERITT et al. (Court of Errors and Appeals of New Jersey. Nov. 16, 1908.)

1. EVIDENCE (§ 177*)-SECONDARY EVIDENCE. Secondary evidence of documents out of the jurisdiction of the court is not admissible merely upon proof of that fact, even though the documents are the papers of a third party not interested in the pending controversy.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 577; Dec. Dig. § 177.*]

2. TENANCY IN COMMON (§ 20*)—TAX TITLERIGHTS OF CO-TENANTS.

Where one tenant in common acquires a tax title or redeems land from a tax sale, his

act inures to the benefit of his co-tenants upon their reimbursing him for their proportionate share of the amount paid by him.

[Ed. Note. For other cases, see Tenancy in Common, Cent. Dig. §§ 60, 61; Dec. Dig. § 20.*] 3. TENANCY IN COMMON (§ 30*) RIGHT TO CONTRIBUTION-ENFORCEMENT.

A tenant in common who discharges a lien upon the common property has a right to contribution from his co-tenant, and as security is entitled to a lien upon his co-tenant's share of the property. The lien may be enforced in equity by treating the tax deed as valid and subsisting for that purpose.

[Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 95, 99; Dec. Dig. § 30.*]

4. PARTITION (§ 19*)-RIGHT TO SUE-OUSTER. A tenant in common who has been disseised is not entitled to partition, but, to prevent a tenant in common from having partition, there must be an actual ouster.

[Ed. Note.-For other cases, see Partition, Cent. Dig. 60; Dec. Dig. § 19.*] (Syllabus by the Court.)

Appeal from Court of Chancery.

Bill by Melford N. Roll and others, executors, against Abraham Everitt and others. From a decree (65 Atl. 732) advised by the Vice Chancellor, defendants appeal. Reversed.

Alan H. Strong, for appellants. Frederick M. P. Pearce, for respondents.

SWAYZE, J. This was a bill for partition. The property was conveyed by one Cotheal to Mary Jane Roll and Sarah E. Dey by deed dated April 16, 1874, which purported to convey three tracts of land, including the land now in question. The complainants are the successors in title of Mary J. Roll, but it is unnecessary to state in detail the devolution of title to the share claimed by them, Sarah E. Dey's share was conveyed by the sheriff in 1877 to Ward C. Perrine and Abraham Everitt, who subsequently acquired a tax title.

The first difficulty in the case arises out of the following clause in the deed: "It is agreed by and between the parties to these presents, that this indenture shall not conflict with the title of any part of the aforesaid premises previously sold and conveyed by said Alexander I. Cotheal and James D. Thomas, to any party or parties, and this deed is subject to any such conveyances." The defendants contend that the property in question had been conveyed by Cotheal and Thomas in 1835 to Peter G. Taylor, and that, therefore, no title passed by the deed to Roll and Dey. They also claim a title paramount to the complainant by virtue of a tax deed from the collector of taxes dated June 4, 1877, to Ward C. Perrine and Abraham Everitt. The interest of Everitt under this tax deed was conveyed after his death by commissioners appointed in partition proceedings to Ward C. Perrine, George L. Everitt, and John R. Ever

itt. The share of George L. Everitt subsequently passed by his will to his sons Abraham and William C.-two of the defendants. The share of Ward C. Perrine subsequently passed by his will to other defendants.

The proof offered of the alleged conveyance from Cotheal and Thomas to Taylor consisted of copies of books of account of Cotheal and Thomas as trustees containing record of sales of lots, part of the tracts in question. It was the same proof that was resorted to in the case of Roll v. Rea, 50 N. J. Law, 264, 12 Atl. 905, and there held sufficient to carry the case to the jury. This ruling was subsequently approved by this court in Roll v. Rea, 57 N. J. Law, 647, 32 Atl. 214. In that case, however, the copies taken from the trustees' books had been introduced by consent, and the question presented was whether such a reasonable search had been made for the deed to Lary, which was the one there in question, that secondary evidence of its contents was permissible. In the present case the defendants seek to go further, and, without having the consent of their adversaries, they seek to prove the existence of a similar deed to Taylor, not by the secondary evidence of the original books of the trustees, but by a copy of that secondary evidence. If we assume that the books themselves would be admissible evidence, it does not follow that a copy thereof is admissible because they are out of our Jurisdiction. On this question the authorities are at variance. In the last edition of Greenleaf on Evidence, § 563e, and in Wigmore on Evidence, § 1213, cases are cited on either side. Thus, in Boyle v. Wiseman, 10 Exch. 647, it was held that the contents of a letter written by Cardinal Wiseman, and in the possession of a resident of France, which was alleged by the plaintiff to be libelous, and could not be proved by secondary evidence merely because the person who had possession of it was beyond the jurisdiction of the court, and had refused to deliver it up at the request of a third person, who did not disclose the purpose for which it was wanted; and in Turner v. Yates, 16 How. 14, 14 L. Ed. 824, secondary evidence of an invoice, which was presumed to have been sent to London, was rejected, upon the ground that the deposition of the party in London having possession in that way should have been taken, or some proper attempt made to obtain it. On the other hand, in Bruce v. Nicolopulo, 11 Exch. 129, where it became necessary to prove that the failure to load a vessel in accordance with a charter party was due to the restraint of princes, it was held that evidence of the contents of printed placards purporting to be signed by Prince Gortschakoff, and posted at a Black Sea port, was admissible; and in Burton v. Driggs, 20 Wall. 125, 22 L. Ed. 299, the court in Vermont admitted secondary evidence of the

state. Although in the opinion in this case it was said that, the books being out of the state and beyond the jurisdiction of the court, secondary evidence to prove their contents was admissible, it must be noted that the plaintiff had endeavored to obtain them for use on the trial, and that the custodian refused to permit them to go, and the deposition of the cashiers of the bank during the period covered by the controversy was taken. We think it would be quite unsafe, in view of the grounds upon which the rule forbidding the introduction of secondary evidence rests, to lay it down broadly that secondary evidence of documents out of the jurisdiction of the court is admissible when that fact alone appears, even though the documents are the papers of a third party not interested in the pending controversy. It ought at least to appear that some effort had been made to secure the original documents. We are not prepared to say that such an effort ought not to include the taking of depositions within the foreign jurisdiction. In the present case the defendants did nothing to secure the original documents, and contented themselves with proving the death of Cotheal, and the fact that he had resided outside of the jurisdiction of New Jersey. No effort seems to have been made to ascertain whether the documents were still in existence, and, if so, in whose custody they were to be found. We think, therefore, that the Vice Chancellor was quite right in disregarding the claim of the defendants that the title to the land in question was in Taylor.

With reference to the tax title, the Vice Chancellor held upon an examination of the tax deed that it was void because it failed to comply with the law then in force; but he felt constrained by our decision in Slockbower v. Kanouse, 50 N. J. Eq. 481, 26 Atl. 333, not to determine that question, regarding it as a question of pure law. He therefore held the case to enable the defendants to establish their title under that deed, and required them to take proceedings for that purpose within 30 days. Upon their failure to take such proceedings, he advised a decree that the premises described in the bill are free and clear of any lien or incumbrance under and by virtue of the tax deed.

We do not find it necessary to determine whether the Court of Chancery had the right to impose upon the defendants in a partition suit the burden of establishing a title adverse to that of the complainant. That question was not involved in the case. At the time the tax title was acquired Ward C. Perrine and Abraham Everitt were tenants in common with Mrs. Roll by virtue of the sheriff's deed conveying the Dey title to them. The law is well settled that, where one tenant in common acquires a tax title or redeems land from a tax sale, his act inures to the benefit of his co-tenant upon their reimbursing him

paid by him. The principle is in some of the cases put upon the ground of a confidential relationship between the tenants in common. 1 Leading Cases in Equity (4 Am. Ed.) 68,ff. Other cases rest the doctrine upon the principle that one cannot be allowed to acquire a right by his own default. This principle would be violated if a tenant in common, who is equally obligated to pay all the taxes upon the joint property, were allowed to acquire rights superior to his cotenant by defaulting in his obligation, and forcing the public authorities to take proceedings for the collection of the tax. Other cases seem to rest the doctrine upon the view that one who has title to land cannot acquire a superior title by means of a tax deed. In the view of these cases, the acquisition of the tax title amounts to nothing more than a redemption of the purchaser's own land from a lien.

The cases are carefully stated by Mr. Justice Holmes in Hurley v. Hurley, 148 Mass. 444, 19 N. E. 545, 2 L. R. A. 172. The rule has been held applicable where the tenant in common became such after the tax title was acquired. Dubois v. Campau, 24 Mich. 360. Flinn v. McKinley, 44 Iowa, 68, a case where one tenant in common had become the assignee of a tax certificate, and afterwards became a tenant in common before he received the tax deed; and to cases where the tenant in common had acquired the tax title from a third person, who had purchased at the tax sale, Lloyd v. Lynch, 28 Pa. 419423, 70 Am. Dec. 137.

The extent to which the courts go is well illustrated by Burns v. Byrne, 45 Iowa, 285, Busch v. Huston, 75 Ill. 343, and Chace v. Durfee, 16 R. I. 248, 14 Atl. 919, where it was held that a purchase by the husband of a tenant in common would inure to the benefit of all the co-tenants of the wife. The cases are collected in a note to Hoyt v. Lightbody, 8 Ann. Cas. 984.

In the present case the taxes were assessed prior to the acquisition of title by Perrine and Everitt under the sheriff's deed. If the lien of the municipality for the taxes had not then expired, Perrine and Everitt could only secure the release of their undivided interest by payment of the whole tax, and in making such payment were only discharging their obligation to the public on account of their land. Upon the principles above stated they could not acquire any title to the land against their co-tenant by their own default. If, however, the lien had then expired, the collector of taxes was without power, and the tax deed conveyed no title.

The right of a tenant in common who discharges a lien upon the common property is to contribution from his co-tenant, and as security he is entitled to a lien upon his cotenant's share of the property. That lien

may be enforced in equity by treating the tax deed as valid and subsisting for that purpose; and in Hurley v. Hurley, it was held that, until the amount had been paid, the co-tenant had no right to the possession of any part of the land in equity or at law. It was accordingly held in that case that the petition for partition was rightly dismissed. In the Hurley Case, however, the tenant who had paid the taxes actually took possession of the property. In the present case the land is unoccupied land of which neither complainants nor defendants have the actual possession. At common law a tenant in common who had been disseised could not have the writ of partition; and the reason is that given by Co. Litt. 167, in discussing the right of partition as between copartners: "They no longer hold the estate together." But, in order to prevent one tenant in common from having a partition, there must be an actual ouster. In the absence of such ouster, the ordinary rule prevails that the possession of one tenant in common is the possession of all. Foulke v. Bond, 41 N. J. Law, 527.

The fact that the statute authorizing the sale of land for taxes as it existed when the tax deed was made (Gen. St. 1895, p. 3351, § 322) authorized the purchaser at the tax sale to hold and enjoy real estate during the term for which he purchased the same does not prevent the operation of this rule. The tax deed inures to the benefit of all tenants in common; and, if kept alive at all, is only kept alive in equity for the purpose of enforcing the right to contribution. Such right is no bar to a bill in equity for partition.

The result is that we reach the same conclusion reached by the Vice Chancellor, except so far as he decreed that the premises were free and clear of any lien or any incumbrance under or by virtue of the tax deed. In this respect the decree is erroneous and must be reversed, and the record remitted to the Court of Chancery, and a decree entered for partition, which shall provide that the defendants have a lien upon the complainants' share for the proportionate part of the taxes upon the property in question paid by the defendants or their predecessors in title, with interest from the date of payment. This will necessitate the taking of further proofs.

(76 N. J. L. 613) FLECKENSTEIN BROS. CO. v. FLECKENSTEIN.

(Court of Errors and Appeals of New Jersey. Nov. 16, 1908.)

1. CONTRACTS (§ 117*)-RESTRAINT OF TRADE -VALIDITY.

A provision in a contract for the sale of defendant's interest in a corporation, binding him not to engage in, promote, or give his name to, any similar business located within 500 miles from Jersey City for 20 years, was only in par

tial restraint of trade, and was not, therefore, contrary to public policy, unless it went further than was reasonably required for the protection and enjoyment of the business sold, or unless the restraint was so great as to interfere with the interests of the public.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 554, 555; Dec. Dig. § 117.*] 2. CONTRACTS (§ 117*) - AGREEMENT NOT TO ENGAGE IN BUSINESS-VALIDITY.

A contract not to engage in business within a specified area for a specified term is not injurious to public interests as long as the area is no greater than that covered by the business, the good will of which is sold.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 554, 555; Dec. Dig. § 117.*] 3. CONTRACTS (§ 137*)-RESTRAINT OF TRADE -PARTIAL ILLEGALITY-SEVERANCE.

Defendant, on selling his interest in a corporation, agreed not to engage in promoting, or to give his name to, any similar business within 500 miles of Jersey City for 20 years. Held, that such contract should be construed to restrain defendant, either in Jersey City or within 500 miles therefrom, and as so read was severable and sustainable in so far as it applied to the city, even if unenforceable as to the outside territory.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. 88 554, 555; Dec. Dig. § 137.*] Pitney, Ch., and Swayze, Voorhees, and Green, JJ., dissenting.

Error to Supreme Court.

Action by the Fleckenstein Bros. Company against George Fleckenstein. Judgment for defendant, and complainant brings error. Reversed.

Gilbert Collins and Albert I. Drayton, for plaintiff in error. James A. Gordon, for defendant in error.

GUMMERE, C. J. The plaintiff in this case, Fleckenstein Bros. Company, was incorporated in 1901, with a capital of $40,000, for the purpose of manufacturing bologna and other pork products, curing hams and bacon, and selling these articles, both at wholesale and retail. Its principal places of business were located in Jersey City, but its product was sold, not only there, but also in other places in Hudson, Essex, Union, and Passaic counties, in New York City, and places adjacent thereto, and, to a limited extent, in Pennsylvania. Its business was almost immediately a profitable one. The defendant George Fleckenstein, was its manager, and owned a controlling interest in its stock. On October 6, 1902, he sold out his holdings of stock to one Niederlitz, and others who were associated with him, thus giving them the control of the corporation. The consideration for the sale was over $24,000, and for this payment, in addition to the transfer of his stock, the defendant entered into the following agreement with the corporation: "Jersey City, N. J., October 6, 1902. For the sum of one dollar to me paid (receipt of which is hereby acknowledged) by Fleckenstein Bros. Company of Jersey City, N. J., I do hereby guarantee and agree

to and with said company that I will not directly or indirectly engage in, promote or give my name to any business of the same kind or character as that now carried on by said company within five hundred miles from the city of Jersey City, N. J., at any time within the period of twenty years from the date hereof. George Fleckenstein. Witness, Henry Niederlitz." In less than five months after the making of this agreement the defendant became interested in a competing business established in Jersey City, under the name of R. E. Fleckenstein & Co., and this suit was brought to recover the damages resulting to the company from the breach of his contract. The trial of the cause resulted in a nonsuit, the court below being of opinion that the contract was one which imposed an unreasonable restraint upon trade, and was therefore invalid; that it was indivisible, and therefore not enforceable, even within the territory of Jersey City. The correctness of this ruling is now challenged by the plaintiff.

The contract in question is one which is in partial restraint of trade. It is therefore, under all the cases, not objectionable to public policy, unless it goes further than is reasonably required for the protection and enjoyment of the business sold, or unless the restraint is so great as to interfere with the interests of the public. And it may be added that the trend of opinion of the present day is that such a contract is not injurious to the public interests, so long as the area within which the business is restrained is no greater than is covered by the business whose good will has been sold. Page on Contr., vol. 1, § 378, and cases cited. Whether a contract which extends the area of restraint beyond the territory within which the business is being carried on at the time of its sale imposes an unreasonable restraint upon trade is a question upon which courts differ. The preponderance of view seems to be that it does. Nevertheless there is much force in the contention that a person who purchases the good will of a business, with the purpose of extending its scope, is entitled to bargain with his vendor against competition within the territory into which he designs to extend it, and that such a contract is not opposed to public policy when the area which it embraces is not greater than that which the parties may fairly anticipate the extended business will cover. "It is of public interest that the owner of a business who desires to sell it shall be able to get a fair price for it, and that his purchaser shall be able to obtain by his purchase that which he desires to buy. Obviously the only practical mode of accomplishing that purpose is by the vendor's contracting for some restraint upon his acts preventing him from engaging in the same business in competition with that which he has sold." Trenton Potteries Co. v. Oli

phant, 58 N. J. Eq. 514, 43 Atl. 726, 46 L. R. A. 255, 78 Am. St. Rep. 612. And just as obviously the value of the good will is enhanced by affording to the vendee protection against competition from the vendor within the territory into which both parties understand the vendee proposes to, and may reasonably expect to be able to, extend the busi

ness.

If a contract having the scope suggested does not impose an unreasonable restraint upon trade, it would seem that the question whether the area which was embraced in a given contract was greater than was required for the full protection of the vendee must ordinarily be one of fact to be determined by the jury, rather than the court, when an action at law is brought for its breach. As was pointed out in the Trenton Potteries Case, supra, in the days when orders and responses had to be transmitted by mail, and the mail was carried by stagecoach and goods were transported by pack or wagon, the area of the trade of a manufacturer or tradesman was necessarily limited by these conditions. Now that orders and responses may be transmitted over hundreds of miles by telegraph and telephone, and quick transit may be had for goods, either by express or freight, competition has assumed altogether different proportions, and what would have been at one time merely a burden upon the vendor may now be essential to the reasonable protection of the vendee. The case in hand, however, does not require a determination of the question whether or not such a contract as that indicated imposes an unreasonable restraint upon trade. By the terms of the agreement sued upon the defendant promised not to engage in a competing business "within five hundred miles from the city of Jersey City." Taken literally, this language does not inIclude the city of Jersey City within the area of protection; and yet, when it is remembered that the principal business of the corporation was carried on in that city, it cannot be doubted that both parties intended by the words used to include it in the territory within which the defendant agreed not to carry on a competing business. So construed, the contract may fairly be read as binding the defendant not to engage in a business of the character conducted by the corporation, "either in the city of Jersey City or within five hundred miles from that city." Reading it thus, the description of the area within which the contract restrains the defendant is a divisible one, embracing not one whole area, but two areas disjunctively described. Assuming that the restraint contracted for, so far as it embraces territory outside of Jersey City, is unreasonable, and that the contract is to that extent invalid, nevertheless, in respect to Jersey City, it was clearly necessary for the protection of the business as it existed at the time of the sale, and to

that extent is not in opposition to public policy, and may be enforced. Trenton Potteries Co. v. Oliphant, supra.

It is said that a construction which makes the area embraced in this contract divisible is a forced one; that the words used in the contract describe an indivisible area, and express the intention of the parties in that regard. I cannot think so. Ordinarily it is a reasonable presumption that parties intend to make a valid contract; that in a case like the present they design to provide a restraint which will be reasonable, in their judgment, for the protection of the purchaser in the enjoyment of the subject of the purchase (Trenton Potteries Case, 58 N. J. Eq. 517, 43 Atl. 723, 46 L. R. A. 255, 78 Am. St. Rep. 612), and I see nothing in the language used by these parties which requires the conclusion that their intention was that, unless the full measure of protection afforded to the plaintiff by the contract was capable of enforcement against the defendant, there should be no protection at all against competition by the latter. The construction of this contract which makes the description of the restricted area divisible is certainly a possible one; and it seems to me that, when a vendor endeavors to steal from his vendee the business which he has sold, having in his pocket the moneys which were paid to him for it, courts should be diligent in the endeavor to find a way to prevent the consummation of so fraudulent a scheme. As was said by Lord Macnaughten in Nordenfelt v. Maxim, etc., Co., App. Cas. 1894, p. 573, in speaking of a case like the present, it seems almost absurd to talk of public policy in connection with such a case. It is a public scandal when the law is forced to uphold a dishonest act; and the public suffers no injury in being deprived of the privilege of dealing with a man who is carrying on his business in violation of his solemn engagement not to do so.