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(74 N. J. E. 852)

were proper parties for the purposes of the inCOLLINS v. LEARY et al.

junction. (Court of Errors and Appeals of New Jersey. formance, Dec. Dig. § 106.*]

[Ed. Note.-For other cases, see Specific PerNov. 16, 1908.)

7. SPECIFIC PERFORMANCE ($ 106*)-PARTIES1. SPECIFIC PERFORMANCE (8 106*).

HEIRS OF PARTY CONTRACTING. Where a husband orally agreed to convey

In a suit for specific performance of a property to complainant, and, after the hus contract to convey land, the heirs of the party band's death, his wife brought ejectment for the contracting to convey are necessary parties deproperty, which complainant was occupying, fendant to the decree. the wife was a necessary party to a suit to [Ed. Note.-For other cases, see Specific Percompel specific performance of the agreement to formance, Cent. Dig. $ 347; Dec. Dig. 8 106.*] convey and to enjoin the ejectment suit, at least as far as the injunctive relief was concerned. Appeal from Court of Chancery.

[Ed. Note.-For other cases, see Specific Per- Suit for specific performance and other formance, Dec. Dig. $ 106.*]

relief by Sara D. Collins against Mary C. 2. SPECIFIC PERFORMANCE ($ 106*)-ACTIONS-Leary and others. From an order overruling PARTIES.

a demurrer to the bill, defendants appeal. Where one agreed with complainant's hus

Affirmed. band to convey property to complainant merely for convenience, but there was no agreement that The following is the opinion of Howell, V. she should hold it in trust for her husband's c., of the court below: heirs, they were not necessary parties to a suit by complainant for specific performance of the

"The argument in this case took place at agreement to convey..

the October term. The question at issue [Ed. Note.-For other cases, see Specific Per-was decided orally, and an order was enterformance, Dec. Dig. § 106.* ]

ed overruling the demurrer. An appeal hav. 3. EQUITY (8 148*) - PLEADING - MULTIFARI- | ing been taken, I am called upon to state OUSNESS-SEVERAL, CAUSES OF ACTION.

the reasons which led to the sustaining of The rule against multifariousness is merely the bill. one of convenience, and, if the court can make a decree on a bill which joins independent

"The facts are these: William A. Collins causes of action, the bill will not be considered had been for years an employé of the Morris multifarious; but, if it is impossible to make & Cummings Dredging Company, of which a decree so as to do justice to all parties, the court will, of its own motion, treat the bill as company James D. Leary was the controlling multifarious, whether or not the objection is influence. Collins died in 1906, leaving the raised by the parties.

complainant his widow, who became admin[Ed. Note.-For other cases, see Equity, Cent. istrator of his estate. Leary died in 1902, Dig. $$ 341-367; Dec. Dig. § 148.*]

leaving a widow and several children, all of 4. EQUITY ($ 148*)—PLEADING-RELIEF-MUL- whom, together with the Morris & Cummings TIFARIOUSNESS.

Dredging Company, are parties defendant. Complainant's husband made a contract with defendant's husband and a corporation con- | Years ago Collins invented a dredging bucktrolled by him, by which the corporation was to et, for which he obtained letters patent. It have the use of a patent belonging to com- seems to have been considered useful in the plainant's husband, for which the corporation business of the Morris & Cummings Dredgagreed to pay a royalty and defendant's husband agreed to convey to complainant a house. Held, ing Company, and an agreement was made that the transaction was a single agreement and in 1906 between Leary on his behalf and on could be dealt with by one decree against the behalf of his company by which the company two sets of defendants and a bill for specific obtained the right to use the invention, in performance of the agreement to convey and an accounting for royalties due, making defendant, consideration of which the company and her husband's heirs, and the corporation de- Leary agreed orally to convey to Collins a fendants was not multifarious.

house and lot in Bloomfield for a home for [Ed. Note.-For other cases, see Equity, Cent. himself and family, but that as a matter of Dig. $8 341-367; Dec. Dig. § 148.*]

convenience the title should be taken in the 5. SPECIFIC PERFORMANCE ($ 127*)-RELIEF- name of his wife, the present complainant. INCIDENTAL RELIEF-ACCOUNTING.

In a suit against a corporation and its It was also agreed at the same time, and manager for specific performance of a contract as part of the same consideration, that the by which the corporation, in consideration of Morris & Cummings Dredging Company the use of a patent, owned by complainant, would pay to Collins a fair royalty for the agreed to pay royalties, and the manager agreed convey certain property to complainant,

use of the invention. In pursuance of this equity, having jurisdiction to determine the na-agreement Collins and his family at once ture of the contract, will decree an accounting took possession of the premises. Collins duras to the royalties. (Ed. Note. For other cases, see Specific Per- her family since his death, have been in the

ing his lifetime, and the complainant with formance, Dec. Dig. § 127.*]

continual possession of the premises, and 6. SPECIFIC PERFORMANCE ($ 106*)-PARTIES. Where defendant's husband agreed to con

are now in such possession. They have nevvey to complainant property which complainant er paid any rent or in any way recognized and her husband thereafter occupied, but de- any right of Leary or his widow and heirs in fendant and her husband's heirs brought eject- the property, but have always treated it as ment therefor after his death, in a suit for specific performance of the agreement to convey

their own. A deed of conveyance from and to restrain the ejectment action, the heirs Leary to Mrs. Collins was at one time drawn

to

and executed, but was never delivered, be-, heirs at law of William A. Collins are neccause the parties had never finally agreed essary parties. The agreement provided that upon the amount of the royalty which should the dredging company and Leary would conbe paid by the Morris & Cummings Dredging vey the premises in question to Mrs. Collins Company for the use of the patented bucket. ) as a matter of convenience. It may well be Meantime the dredging company has been that Mrs. Collins would hold the premises in using the invention in its business and has trust for the heirs of her husband, but there paid no royalty whatever therefor. Negotia- is nothing in the case to show that there is tions concerning the amount of the royalty or can be any such trust. Mrs. Collins sued continued between Collins and Leary until merely for the specific performance of the 1902, when Leary died, and after that with agreement to convey to her. What happens the Leary heirs until Collins died, without after such conveyance shall have been effectany definite result. In 1907 Mrs. Leary, the ed is of no consequence to the defendants. widow of James D. Leary, and the Leary "3 and 4. The next objection is that the heirs, began an action of ejectment against bill is multifarious because it joins a claim Mrs. Collins for the recovery of the premises by Mrs. Collins individually with a claim by in question, and this suit is brought to obtain her in her representative capacity, and decree for the specific performance of the because the bill is multifarious, in that it contract, (1) on the part of the Learys by de- joins separate and distinct causes of action. livery of a deed for the premises in question These two objections I will consider togethto Mrs. Collins, and (2) by the Morris & er. The doctrine of multifariousness is dealt Cummings Dredging Company by accounting with by Vice Chancellor Pitney in See v. for the fair value of the right to use the Heppenheimer, 55 N. J. Eq. 240, 36 Atl. 966, patent dredging bucket.

and by Vice Chancellor Emery in Shutts v. “The bill prays, among other things, for United Boxboard & Paper Company, 67 N. J. a preliminary injunction against the prosecu- Eq. 225, 58 Atl. 1075; and in the end it may tion of the suit at law. The dredging com- be said that the rule against multifariousness pany separately, and the widow and three of is merely a rule of convenience. If the court the Leary heirs jointly, have demurred. The can see its way clear to make a decree on a dredging company assert: (1) Want of eq- bill which joins what might otherwise be in. uity; (2) that it is not bound by the Leary dependent causes of action, it will not conagreement; (3) that the bill is multifarious; sider the bill multifarious. If, however, on (4) that the Collins heirs are necessary par- the other hand, the objection is not taken, ties; (5) that complainant sues in both her by the pleadings or at the hearing, and the individual and representative capacity; (6) court finds it impossible to make a decree that this court has no jurisdiction; (7) that which shall do justice to all the parties, the complainant has complete remedy at law. then the court will make the objection of its Mrs. Leary and the three Leary heirs allege: own motion. In this case the allegation is (1) Want of equity; (2) multifariousness; that a contract was made by Mr. Leary and (3) Leary's widow has no interest and should the Morris & Cummings Dredging Company not be a party; (4) the Collins heirs are nec by which the dredging company should have essary parties; (5) the complainant sues in the right to use Collins' patented invention both her individual and representative ca- upon payment of a fair royalty, and Leary pacities; (6) the court has no jurisdiction; should convey to Mrs. Collins the Bloomfield (7) there is a remedy at law. These objec-property. It is one agreement and is based tions will be taken up in the order in which upon an indivisible consideration. There is they appear in the brief for the demurrant. no reason, so far as the mere convenience of

"1. The first objection is that the widow the court is concerned, why this single conof James D. Leary is an improper party. It tract should not be dealt with by a single is quite possible that she is not a necessary decree against the two sets of defendants. party for the final relief which is prayed by

“5. The next objection is that the comthe bill. She possibly may not be compelled plainant is not entitled in equity to an acto surrender her right of dower in the prem-count against the dredging company. This ises, but, even in that event, she is a proper needs little or no elucidation. This court party and may properly be brought in for has jurisdiction over the question of what the protection of her own interests. If it the contract is, and, having ascertained what should appear, however, on final hearing, the contract is, an account will be ordered as that she had executed the deed which the a matter of course. bill alleges was executed to Mrs. Collins, it

“6. That the bill shows no occasion for remight be held that she had waived her dow- lief against the Leary heirs: (1) They are er right. This, however, is a question which proper parties for the purpose of the injuncis merely suggested and is not at all decided. tion; (2) they are necessary parties to the The conclusive thing about her case is that decree in case a conveyance is ordered. she is one of the parties plaintiff in the ac

"This disposes of all the objections that tion of ejectment and is undoubtedly a nec

were made on the argument or in the comessary party to the restraint which the bill plainant's brief." ultimately prays.

John M. Enright, for appellants. McCar. PER CURIAM. The order under review The result is that the exceptions must be herein will be affirmed, for the reasons ex- sustained, and the decree granted, and I will pressed in the opinion of Vice Chancellor so advise. Howell.

(74 N. J. E. 197)

AMPARO MINING CO. V. FIDELITY LEE v. LEE.

TRUST CO. (Court of Chancery of New Jersey. Dec. 3, (Court of Chancery of New Jersey. April 13, 1908.)

1908.) DIVORCE (133*)—DESERTION_EFFORT TO IN- 1. EQUITY (8 32*)_JURISDICTION OF SUBJECTDUCE RETURN-EVIDENCE.

MATTER-NATURE OF ACTION. Evidence, in a suit for divorce for deser

An action by a home corporation against tion, held sufficient to show substantial effort

a foreign corporation not engaged in business in by petitioner to induce defendant to return.

this state, and without any office, agent, or place [Ed. Note.-For other cases, see Divorce, of business in the state, to establish title to Dec. Dig. § 133.*]

treasury shares of the capital stock of comSuit by Joseph M. Lee against Emma Lee. solutely,' but which complainant alleges were

plainant, which defendant claims to own abHeard on exceptions of petitioner to the held by defendant's testator in his lifetime as master's report. Exceptions sustained, and security for the payment of a sum of money, is decree granted.

an action quasi in rem, although complainant

asks for a transfer of the shares of stock, and Hugh B. Reed, for petitioner.

no receiver has been appointed to take possession of the res, and therefore is within the ju

risdiction of the Court of Chancery, and deGARRISON, V. C. This is an uncontested fendant, having been duly notified of the suit divorce suit, in which the master reported by the statutory publication of notice, and acagainst granting the decree upon the ground tual service of notice of the suit, and of the or

der requiring it to appear and plead on or bethat there was not proven any substantial fore a time stated, will be bound by the decree, effort on the part of the husband to induce if it refrains from appearing, so far as the same the wife to return to him after she had left relates to the status of the stock. him.

[Ed. Note.-For other cases, see Equity, Cent. From the proofs, I am convinced that a Dig. $ 95; Dec. Dig. $ 32.* ] decree should be advised, as I cannot agree 2. EQUITY (32*)-JURISDICTION OF SUBJECTwith the master that there is not evidence of

MATTER - NATURE OF ACTION -"QUASI IN

REM.' the character required. The proofs show

The essential elements of an action "quasi that the parties were married in 1900 and in rem” are a res located within the territorial lired together until February, 1902. They limits of the state in such a way that the state were then living at Nutley, N. J. One of the pose of it, a course of judicial procedure, the ob

can exercise absolute power to control and dishousehold was the half-brother of the de-ject of which is to subject the res to the power fendant. His presence was objectionable to of the state directly by judgment or decree, the petitioner. He contributed nothing to which is entered as distinguished from a course the household expenses, although he was em-compelling a. party to control or dispose of the

of procedure which only disposes of the res by ployed, and his conduct was such that the res, and a course of judicial procedure on its petitioner did not desire to have him as a face directed sufficiently toward the res so as to member of his family. The husband and disclose this res to the defendant when reason

ably notified of the action. wife disagreed about this matter. After a

[Ed. Note. For other cases, see Equity, Cent. particular instance of disagreement, which Dig. & 95; Dec. Dig. $ 32.* occurred in February of 1902, the wife and For other definitions, see Words and Phrases, her mother, who was temporarily staying vol. 8, p. 7777.] there, took their household goods and depart- 3. EQUITY (8 123*)–PROCESS-NOTICE TO Noned during the absence of the husband. Thes RESIDENTS-SUFFICIENCY. left word with the elder children of the scribed by Laws 1902, p. 514, $$ 12, 13, direct

The notice to nonresident defendants prepetitioner (who were not his children by this ing service on nonresident defendant by notice, wife, but by a former wife) that they were the form and scope of which shall be prescribed going away and would not come back. The by the chancellor, and rule 58 of the Chancery

Court, stating that the notice shall state "the desertion is, in my view, plainly proven. object of the suit and why the persons to whom The husband testifies to several instances it [i. e., the notice) is addressed are made dewhen he saw his wife and endeavored to in- fendants," require that the notice shall apprise duce her to return to live with him. He is of the nature of the suit, and disclosure of the

the defendant, not only that he is sued, but also clearly corroborated in respect to one of res toward which the suit is directed. these instances. His eldest son accompanied [Ed. Note.-For other cases, see Equity, Cent. him to Brooklyn in the year 1903 or 1901 Dig. $ 300; Dec. Dig. § 123.*] (neither the father nor the son being able 4. EQUITY ( 32*)_JURISDICTION OF SUBJECTto fix the exact time) and overheard a con

MATTER-NATURE OF ACTION. versation between the parties in which the

The jurisdiction in actions quasi in rem is

based on the power of the sovereign state to exdefendant stated that she would not come ercise control over all objects to which that powback to live with her husband, his father. er can be directly applied, and the necessity of

SON.

the court to control all property within its ter- | 10. EQUITY ($ 32*) —JURISDICTION OF SUBritorial limits.

JECT-MATTER-NATURE OF ACTION. [Ed. Note.-For other cases, see Equity, Cent. Nor is the character of such suit as one Dig. 8 95; Dec. Dig. $ 32.*]

quasi in rem taken away by the fact that the 5. CONSTITUTIONAL LAW (8 309*)—DUE PRO- suit is brought by the custodian of the property,

since the same remedies for the enforcement of CESS OF LAW-DEPRIVATION OF PROPERTY. Where an action is brought which involves

the decree may be applied at the instance of the

defendant. property within the state, and nonresident defendants are fairly notified of the action, and

[Ed. Note.–For other cases, see Equity, Cent have ample opportunity to appear and be heard Dig. & 95; Dec. Dig. $ 32.*] therein, the rights of all parties interested in such property are determined in such action by

Suit by Amparo Mining Company against due process of law.

the Fidelity Trust Company, executor, etc., [Ed. Note.-For other cases, see Constitution of Edward M. Paxon. Defendant filed a plea al Law, Cent. Dig. $ 929; Dec. Dig. $ 309.*] to the jurisdiction of the court. Plea over6. EQUITY (8 31*)—JURISDICTION OF THE PER- ruled. An action strictly in personam for the re

French & Richards, for complainant. Lin. covery of corporate stock, the situs of which is dabury, Depue & Folkes, for defendant. in the state, may be brought in the Chancery Court. [Ld. Note.-For other cases, see Equity, Cent.

STEVENSON, V. C. The complainant is a Dig. $ 93; Dec. Dig. $ 31.*]

New Jersey corporation, and the defendant 7. EQUITY ($ 32*)—JURISDICTION OF SUBJECT. is a corporation existing under the laws of

MATTER-ESTABLISHMENT OF TITLE-EQUI- Pennsylvania, in which state it has its office TABLE TITLE TO PERSONAL PROPERTY.

and conducts its business. The object of the Where a holder of an equitable title to bill is to establish title to 549,504 shares of chattels takes possession, he thereby acquires a legal title, as the only right in respect to the the capital stock of the complainant, of the chattels remaining in the original holder of the par value of $1 per share, which the defend. legal title is to convey the same to the holder of ant claims to own absolutely. The bill althe equitable title, and this right of the holder leges that the defendant's testator acquired of the equitable title is further established by Laws 1902, p. 524 (section 44 of the Revised these shares of stock under such circumstanChancery Act of 1902) providing that “the de- ces that bis executor and trustee, the de cree of the Court of Chancery shall

fendant, must be deemed to hold the same in have the force, operation and effect of a judg: trust for the complainant; that the sole inment at law in the Supreme Court of this state," and Laws of 1902, p. 526, $ 46, providing terest of the defendant in these shares of that, when a complainant obtained a decree, the stock is the right to hold them as security Court of Chancery should have power "to cause for the sum of $40,000 advanced by the de by injunction the possession of the effects and es fendant's testator in his lifetime, in the busitate demanded by the bill, and whereof the possession or a sale is decreed, to be delivered to the ness of acquiring the shares as agent or truscomplainant or otherwise according to such de- tee for the complainant. The bill shows that cree and as the nature of the case may requise," the shares of stock in question are what are and therefore a court of equity may acquire jurisdiction of a suit to establish rights in person- commonly called "treasury stock"; 1. e., stock al property in the custody of a person in this once lawfully issued wbich may be held by state, as against a non resident, as such a suit or on behalf of the complainant and lawwould be one quasi in rem; a decree in per; fully transferred at any time. The bill does sonam not being necessary to transfer the legal | not set forth a claim that the defendant is title to complainant.

[Ed. Note.-For other cases, see Equity, Cent. holding shares of stock which, upon payment Dig. $ 95; Dec. Dig. $ 32.*]

of $40,000, should be surrendered for can8. EQUITY ( 32*)_JURISDICTION OF SUBJECT. cellation, or that upon such surrender the MATTER-ENFORCEMENT OF DECREE.

shares would ipso facto be retired. AccordA contention that jurisdiction cannot at- ing to the allegations of the bill the shares tach for the reason that the court cannot en- will remain definite personal property belong. force its decree cannot be sustained, since the court can enforce the decree by the appointing to the complainant in case its title to ment of a receiver to take possession of the them shall be established, in this suit, har. property, and by a decree enjoining the custodi- ing the same legal status as if they were an from interfering with the receiver's posses- shares of stock in some other New Jersey sion. [Ed. Note.–For other cases, see Equity, Cent.

corporation. Dig. $ 95; Dec. Dig. 32.*]

The plea to the jurisdiction is substantially 9. EQUITY ($ 32*)_JURISDICTION OF SUBJECT

the same as that which was sustained in the MATTER-ENFORCEMENT OF DECREE.

case of Wilson v. American Palace Car Co., But such jurisdiction is not dependent on 65 N. J. Eq. 730, 55 Atl. 997. It sets forth, the action of the complainant in moving for, or in effect, that the defendant is a Pennsyl. actually obtaining, the appointment of a re- vania corporation not engaged in business in ceiver, or the issuance of an injunction, but on the existence of the power to seize the property; New Jersey, and without any office, agent, or and a mere possibility that the court's decree place of business in New Jersey, and that it may be rendered nugatory by a removal of the has been proceeded against as an absent deproperty from the state does not destroy the fendant, under our statute, by publication quality of the suit as one quasi in rem.

[Ed. Note.--For other cases, see Equity, Cent. and actual service of notice of the suit, and Dig. § 95; Dec. Dig. $ 32.*]

of the order requiring the defendant to ap pear and plead, answer or demur, to the bill complaint is one strictly in personam or of complaint, on or before a time stated. It quasi in rem, it may be well to bear in mind is not suggested that ample notice of the ex- the respects wherein that case differs from istence of the suit and of its precise nature both the Guayaquil Railway Company Case has not been given, and in fact the plea ex- and the Singer Mfg. Company Case. In the bibits such an ample notice. The sole bar case at bar we have a sole complainant resiwhich the plea attempts to raise to the ac- dent in New Jersey, and a sole defendant tion is the same which was adjudged effect- resident in Pennsylvania. Unlike the Guayaive by the Court of Errors and Appeals in quil, etc., Railway Company Case the dethe American Palace Car Company Case fendant has not in any way, directly or above mentioned. In that case the plea was through an agent, instituted any action in held good because the court found that the New Jersey affecting the res which beyond action was strictly in personam, and not all doubt is located in New Jersey. In the either an action in rem or an action quasi in Guayaquil, etc., Company Case (and the same rem. It must be conceded that, if this pres- was true in the Singer Mfg. Company Case) ent action is strictly in personam, the plea the res was capital stock of a New Jersey is good and must be sustained. It is obvious corporation, but was not the capital stock of that the present action is not strictly in rem. the complainant corporation, as counsel for The question which must determine the va- the defendants have erroneously alleged in lidity of this plea is whether or not this ac- their elaborate and learned brief. But, furtion belongs to that class of actions having ther, in the case at bar no receivership is some of the characteristics of an action prayed for, and no party having the custody strictly in personam, and some of the char- of the res is brought in as a defendant in acteristics of an action strictly . in rem, order to subject the res to the control of the which of late years have been styled actions court. The situation seems to be analogous "quasi in rem." If this is an action quasi to one where a complainant in New Jersey, in rem, the plea is bad and must be over- holding the possession of chattels, files a bill ruled.

in this court to obtain equitable relief against The principles which control the decision a defendant not resident in New Jersey in reof the present case are all contained, I think, spect of such chattels. This case will also, in the opinion of Vice Chancellor Stevens, I think, appear on further consideration to in the case of Andrews v. Guayaquil, etc., be analogous to a suit in this court for diRailway Co., 69 N. J. Eq. 211, 60 Atl. 568 vorce brought by a resident of New Jersey (1905), in which case I understand the decree against his nonresident spouse. was affirmed by the Court of Errors and Ap- The authorities which control this court peals upon the Vice Chancellor's opinion. Indicate, I think, the following as the essenThe same principles are again laid down and tial elements of an action quasi in rem: (1) applied by Vice Chancellor Howell in the A res located within the territorial limits case of Sobege v. Singer Mfg. Co. (N. J. Ch.) of the state in such a way that the state 68 Atl. 64 (1908). It seems to me that these can, if it see fit to do so, exercise absolute two recent decisions of this court control the power to control and dispose of it; (2) a present case, and necessarily lead to the course of judicial procedure, the object and conclusion that the defendant's plea to the result of which are to subject the res to the jurisdiction should be overruled. The es- power of the state directly by the judgment sential facts, the controlling facts, in these or decree which is entered, as distinguished two cases in my judgment are the same as in from a course of procedure which only afthe case at bar, so far as those facts fix the fects or disposes of the res by compelling a character of the actions as actions quasi in party to the action to control or dispose of rem. Nevertheless, the above-mentioned two the res, in accordance with the mandate of cases certainly present facts not found in the the judgment or decree; (3) a course of jupresent case, and the present case exhibits dicial procedure on its face directed specififacts not found in either of those cases. It cally toward the res so as to disclose this is argued on behalf of the defendant that, res to the defendant when reasonably notieven although this court and the Court of tied of the action. The failure to recognize Errors and Appeals have fixed the character this element, it seems to me, vitiates the arof the Guayaquil, etc., Railway Company gument contained in the minority opinion of Case as an action quasi in rem, nevertheless Mr. Justice Hunt in Pennoyer v. Neff, 95 U. the action set forth in the complainant's bill S. 714, 24 L. Ed. 565 (1878). A citizen of in this case is strictly in personam. It must New Jersey, when notified that an action be conceded that there is no decided case in has been brought against him for the recovery New Jersey presenting precisely the same of a money judgment in the state of Coloset of facts with which we have to deal in rado, may elect to disregard the notice so rethis present case, nor bas my attention been ceived. He may prefer not to appear, and called to any decision of any court in which have his case tried under disadvantageous the attempt is made to point out and define circumstances in a remote court, the result the essential characteristics of all actions of which would be a judgment binding upon quasi in rem. In endeavoring to determine him. He may not know that he has any prop

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