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scribed affidavit or affirmation, be recorded as in the absence of actual notice of the prior directed, etc., includes a mortgagee whose mort- mortgage or of the record thereof, to destroy gage secures a pre-existing indebtedness.
the good faith of a subsequent mortgagee. [Ed. Note.-For other cases, see Chattel Mortgages, Cent. Dig. § 238; Dec. Dig. $ 153.
The mortgage which the record protects For other definitions, see Words and Phrases, against creditors and subsequent bona fide vol. 4, pp. 3119, 3120.]
mortgagees of the mortgagor is a mortgage 2. CHATTEL MORTGAGES (8 139*) “SUBSE- recorded with an affidavit annexed thereto QUENT CHATTEL
MORTGAGEE IN Good which complies with the requirements of the FAITH.'
A. “subsequent chattel mortgagee in good statute. The fifth and eighth sections of the faith" is one who receives his mortgage without act clearly refer to mortgages executed in knowledge of the existence of a prior mortgage. conformity to the provisions of the fourth
(Ed. Note.-For other cases, see Chattel Mort-section. gages, Dec. Dig. § 139.*]
While the bill in this case does not in terms 3. CHATTEL MORTGAGES ($ 150*)—GooD FAITH aver that complainant was without knowl
OF SUBSEQUENT MORTGAGEE - NOTICE AF.
edge of the existence of the prior mortgage P. L. 1902, p. 487, 8 4, provides that at the time he took his mortgage, the affla chattel mortgage not accompanied by imme, davit of complainant states that at the time diate delivery, followed by actual and continued change of possession, shall be absolutely void as complainant received his mortgage defendant against nortgagees in good faith, unless the induced him to believe that no prior mortmortgage, having annexed thereto an affidavit gage existed. As the relief sought will be stating the consideration, be recorded as direct: lost unless the present status is maintained ed, etc. Held tbat, in the absence of actual notice of a prior mortgage or the record thereof, until final hearing, I think complainant the good faith of a subsequent mortgagee is not should be permitted to amend his bill and destroyed by the constructive notice afforded by supplement his affidavits that it may appear a record containing a false affidavit touching the consideration, and the subsequent mortgage will with positiveness, if true, that complainant receive the protection of the statute.
was wholly without notice of the existence (Ed. Note.-For other cases, see Chattel Mort of the prior mortgage or of the record there gages, Cent. Dig. § 246; Dec. Dig. $ 150.*]
of. Defendant may also, if he desires, file Injunction by William D. Vanaman against any additional affidavits which may tend to Solomon R. Fliehr and others. On return of show knowledge on the part of complainant. an order to show cause, complainant per- if, after amendment and further hearing, mitted to amend his bill and supplement his it clearly appears that complainant was affidavits, and defendants allowed to file ad- without notice of the prior mortgage, I will ditional affidavits.
advise an order that no sale be made under
the prior mortgage until after a final hearS. Conrad Ott, for complainant. A. F.
ing can be had. Sutton and D. T. Stackhouse, for defendants.
I will hear the amendment and supple
mental affidavits on Tuesday, December 22. LEAMING, V. C. Knowles Loom Works
1908, at 10 o'clock. v. Vacher, 57 N. J. Law, 490, 31 Atl. 306, 33 L. R. A. 305, affirmed in 59 N. J. Law, 586, 39 Atl. 1114, must be regarded as conclusive in
(76 N. J. L. 701) this court to the effect that the statutory
MUNDY et al. v. FOUNTAIN et al. language “mortgagees in good faith,” as used (Court of Errors and Appeals of New Jersey. in section 4 of our chattel mortgage act (P.
Dec, 23, 1908.) L. 1902, p. 487), includes a mortgagee whose arpEAL AND ERROR ($_1010*) REVIEW mortgage has been executed to secure a pre
QUESTIONS_OF Fact-EMINENT DOMAIN (88 existing indebtedness.
28, 169*)-POWER TO CONDEMN LAND. A subsequent mortgagee in good faith is a Amboy passed a resolution for the purchase of a
The board of water commissioners of Perth mortgagee who receives his mortgage with-tract of land for the price of $15,500, which out knowledge of the existence of a prior land the Supreme Court found to be worth not mortgage. Graham Button Company v. Spiel. more than $1,000. The resolution was set aside mann, 50 N. J. Eq. 120, 123, 24 Atl. 571, af- the board should have resorted to its power to
because the price was unreasonable, and because firmed Spielmann v. Knowles, 50 N. J. Eq. condemn instead of paying this exorbitant price. 796, 27 Atl. 1033; Boice v. Conover, 54 N. J. Held, there being evidence to support the findEq. 531, 538, 35 Atl. 402; Bank v. Sprague, 21 ing, of fact by the Supreme Court, that finding
will not be reviewed by this court. Held, that N. J. Eq. 530, 536. It follows that complain the power to condemn this land existed. ant's mortgage will receive the protection [Ed. Note.-For other cases, see Appeal and of the statute if complainant is a mortgagee Error, Cent. Dig. $ 3979;. Dec. Dig. 1010;* who at the time of the execution of his mort. Eminent Domain, Cent. Dig. 88 75, 461; Dec
Dig. $$ 28, 169.*] gage had no knowledge of the existence of the prior recorded chattel mortgage which
(Syllabus by the Court.) contained a false affidavit touching its con- Error to Supreme Court. sideration. I am unable to reach the conclu- Certiorari by the State, on the prosecution sion that any constructive notice afforded by of John L. Mundy and others, against Asthe record of such prior mortgage operates, bury Fountain and James Fountain. Judgment for prosecutors, and defendants bring It is also insisted by the plaintiff in error error. Affirmed.
that the provisions of the act of 1907 (page George S. Silzer, for plaintiffs in error. The section mentioned enacts that “po mu
633, § 2) stood in the way of condemnation. Adrian Lyon, for defendants in error.
nicipal corporation shall have power to con
demn land or water from any new or addiREED, J. This writ brings up a judgment tional source of water supply until the wa. of the Supreme Court setting aside a resolu- ter supply commission shall have approved tion of the board of water commissioners of same.” It is to be observed, first, that this the city of Perth Amboy for the purchase of legislation was not in existence at the time 3242 acres of land for the sum of $15,500. the resolution to purchase this land was
The Supreme Court held that the testimony passed, namely, on June 6, 1906. Secondly, showed that the price was unreasonable, as if it had existed, the duty would have been it could not have been reasonably apprehend- upon the board of water commissioners to ed that the fair market value of the tract apply for the approval of the plant as a was more than $1,000. There was abundant step preliminary to condemnation proceedtestimony to support this finding, and, the ings. Supreme Court having so found as a matter Again, it is said there could have been no of fact, this court will not review it. Moran condemnation unless Perth Amboy had alV. Jersey City, 58 N. J. Law, 653, 35 Atl. 950; ready acquired a plant; but Perth Amboy Vreeland v. Bayonne, 60 N. J. Law, 168, 37 | had a plant; but if it had none, and the Atl. 737; Snyder v. Commercial Union As- power to condemn was for this reason absurance Co., 67 N. J. Law, 626, 52 Atl. 384; sent, that would annul the power to purchase Lehigh & Wilkes-Barre Coal Co. v. Borough as well, as the power to condemn. of Junction (N. J.) 68 Atl. 806, 15 L. R. A. The judgment of the Supreme Court should (N. S.) 514.
be affirmed. The Supreme Court also observed that upon the board was conferred the power of condemnation to meet such a situation, and that the failure of the board to have recourse to
CAMPBELL, MORRELL & CO. V. LE condemnation proceedings in view of the ex
HOCKY. cessive purchase price demanded was an un. (Court of Errors and Appeals of New Jersey. reasonable and improvident exercise of the
Nov. 16, 1908.) power conferred upon the board. The coun- | 1. APPEAL AND ERROR ($_635*)–MATTERS TO
BE SHOWN BY RECORD-RETURN TO WRIT OF sel for the plaintiff in error denies that this
ERROR. power to condemn existed. He insists that
Where the printed case submitted with the the power to condemn contained in Act April briefs shows no return to the writ of error, the 21, 1876 (P. L. p. 366), "To enable cities to writ will be dismissed. supply the inhabitants thereof with pure and Error, Cent. Dig. 8 2781; Dec. Dig. $ 635.*]
(Ed. Note.-For other cases, see Appeal and wholesome water” (1 Gen. St. 1895, p. 646, 8 902), could not be employed by Perth Amboy 2. APPEAL AND ERROR ($ 635*)—MATTERS TO
BE SHOWN BY RECORD TRANSCRIPT OF because it was supplying water to South Am- JUDGMENT. boy; while the power to condemn was only Where the printed case does not contain a conferred for the purpose of supplying the transcript of the judgment below, the writ of
error will be dismissed. Inhabitants residing within the corporate
[Ed. Note.-For other cases, sce Appeal and limits of the condemning city. But the pur- Error, Cent. Dig. $ 2780; Dec. Dig. 8 635.*] pose for which the power to purchase and condemn was conferred could be enlarged by
Error to Supreme Court.
Action by Campbell, Morrell & Co. against subsequent statutes, and was so enlarged by P. L. 1885, p. 267, and P. L. 1886, p. 272 (1 Joseph Lehocky. Judgment for plaintiff, and
defendant brings error. Writ dismissed withGen. St. 1895, p. 655).
out prejudice. But aside from this, it is to be observed that the contention of the plaintiff in error, William W. Watson and Robert R. Watson, if sound, would strip Perth Amboy of the for plaintiff in error. Henry C. Whitehead, power to purchase the land and water in før defendant in error. question; for power to purchase land and water rights stands upon the same footing as PER CURIAM. The printed case submitthe power to condemn. With the exception ted with the briefs herein shows no return that there must be an inability to agree as a to the writ of error, nor any transcript of condition precedent to condemnation, both the judgment below. rights cover the same subject-matter and exist The writ of error will be dismissed with upon the same condition.
costs, but without prejudice. •For other cases see same topic and section NUMBER in Dec. & Am. Digg. 1907 to date, & Reporter Indexea
(75 N. J. E. 205)
WALKER, Vice Ordinary. The Monmouth In re FROTHINGHAM'S WILL county orphans' court on May 29, 1907, made (Prerogative Court of New Jersey. Dec. 18, an order admitting to probate the last will 1908.)
and testament of Howard P. Frothingham, 1. WILLS ($ 173*)-CANCELLATION—ERASURES.
late of the county of Monmouth, deceased, Pencil erasures on the face of a will are as omitting from the probate thereof, however, effectual to cancel the portion obliterated as if the second, third, fourth, and fifth clauses done with ink.
of the will, through which lead pencil lines [Ed. Note. -For other cases, see Wills, Dec. by way of erasure had been drawn by the Dig. & 173.*]
testator and another in his presence and 2. WILLS (8 170*) – CANCELLATION ERA
with his approbation, and which erasures, it SURES.
In case of pencil erasures on the face of a was adjudged, were cancellations made by will, the question is whether the erasures were Mr. Frothingham animo revocandi. In the intended to be the testator's final act, or wheth-clauses of the will thus erased, and said to er they were dependent relative revocation, not final; intention witb which the marks 'were have been canceled with intent to revoke the made being the test.
parts of the testament obliterated, Mr. Froth[Ed. Note.-For other cases, see Wills, Cent. ingham made provisions as follows: (2) To Dig. $ 441; Dec. Dig. $ 170.*]
his daughters, Lillian Low and Beatrice 3. WILLS (8 306*) – CANCELLATION ERA- Vaude Frothingham, each an annuity of $150 SURES.
The presence of pencil marks on the draft per month for life, and to his sister, Grace of a new' will, found in a drawer of testator's Bleecker MacSymon, and his brother, Veredesk after his death, is prima facie evidence that dith S. Frothingham, each an annuity of the marks were made by him, and indicate that he was still in a state of dubiety as to the dis: $100 per month for life, such annuities to position of his property.
be a charge against his residuary estate; [Ed. Note. For other cases, see Wills, Cent. (3) to his friend James P. Dodd his business Dig. $ 731; Dec. Dig. $ 306.*]
of negotiating loans in New York City; (4) 4. WILLS (8 170*) – CANCELLATION EBA- to his daughter Lillian Low a house and
land in East Orange, together with the conThat certain gifts made by a testator are tents of the house; and (5) to his wife, Maud inoperative because of his altered circumstances cannot be urged as a reason for holding that Le Grand Frothingham, a house and land in erasures on his will were made animo revocandi. New York City; also a house and grounds
(Ed. Note.-For other cases, see Wills, Dec. at Deal Beach, Monmouth county, and the Dig. $ 170.*]
contents of the house; also his one-half in5. WILLS (8 170*)-CANCELLATION CANCEL- terest in a large tract of land located in the LATION TO MAKE FRESH WILL.
If a will is shown to have been canceled counties of Passaic and Bergen. for the purpose of making a fresh will, the orig- The pertinent facts concerning the cancelinal is not revoked if no fresh will is made. lations referred to are these : James P.
[Ed. Note:-For other cases, see Wills, Dec. Dodd, the person to whom Mr. Frothingham Dig. $ 170."]
in the third item of his will bequeathed his 6. LS ($ 82*) – VALIDITY OF UNNATURAL business, testified that he was employed by WILL.
Mr. Frothingham at his office in New York ; That a testator makes an unnatural will, or allows a will to stand which, by reason of that, a week or so after the will had been changed circumstances, would be unnatural if executed, Mr. Frothingham brought it to the made at the particular time, is not a reason office to put in his safe, and it then had no for overthrowing it.
[Ed. Note.--For other cases, see Wills, Cent pencil marks upon it. On a day in DecemDig. § 203; Dec. Dig. $ 82.*)
ber, 1906, Mr. Frothingham had a talk with 7. WILLS (8 168*) — REVOCATION NECESSITY
the witness about his financial situation, and OF COMPLYING WITH STATUTES.
said to the witness that he had almost no Irrespective of intention testaments can estate left outside of what real estate he only be revoked according to the formula pre- had, and that he thought he ought to change scribed by statute.
[Ed. Note. -For other cases, see Wills, Dec. his will, because he had provided in it for Dig. § 168.*]
annuities, and there was no money out of
which to pay them, and he was worried Appeal from Orphans' Court, Monmouth about what would become of his wife. He County.
wanted her to get all she could out of the In the matter of the probate of the will of estate which was very little, and he told the Howard P. Frothingham, deceased. The will witness to call his attention to the matter was admitted to probate, and Meredith S. the next day so he could get the will out of Frothingham and another appeal. Reversed
the safe and make the changes. The next McDermott & Fisk and Bigham & Wag- day he himself asked for the will, and the ner, for appellants Meredith S. Frothingham witness got it out for him, and he made the and Grace Bleecker MacSymon. Benjamin pencil marks upon it in the presence of the P. Morris and Edmund Wilson, for respond witness, with the exception of the marks ents Maud Le Grand Frothingham, Beatrice through the names of the witness and of Maude Frotbingham, and James P. Dodd. John Olney and John J. Edwards, which Clinton E. Fisk, for respondent Lillian Low. I marks were made by the witness in Mr.
Frothingham's presence. The word "sold," extent of it, and its effect upon other uncan written in lead pencil on the fifth item of celed portions of the will may prevent the the will, was made by Mr. Frothingbam, and presumption of finality. Now, in the case the tract so marked sold was in fact sold be- under consideration, if it be conceded that tween the date of the will and the day of omitting the parts of the will said to have the drawing the lead pencil mark to which been canceled does not render the remaining reference is made. The witness then asked portions ambiguous (which is true assuming Mr. Frothingham if he wanted him to send the testator meant to cancel the last line of the will over to his lawyer, and he said: the second item which is untouched by the “No; send it to the man who engrossed it, pencil mark), the other tests as to finality, and have him make a draft of it according namely, the manner in which the erasures to the directions." This was done, and the were made, and the extent of them, certainly draft came back, and there was a clause in make against the presumption of finality. Esit that did not suit Yr. Frotbingbam, and pecially is this so when the acts of the testat. he threw it aside, and put the old will in the or are considered in conjunction with his decsafe. The new draft he put in his desk. On larations. the day before the changes were made, and Let me say at this juncture that in Hilduring the talk about them, he suggested yard v. Wood, supra, the character of the that, inasmuch as Mr. Frothingbam thought erasures made upon the will were such as to his family would get hardly anything out lead most strongly to the conclusion that the of the estate, it would be a good thing to act was deliberate on the part of the testator, let Mrs. Frothingham share in the business, and made with intent to obliterate the porif he thought there was anything in it; and tions marked, for there were three or more they also talked about taking his son-in-law lines drawn through each part of the will inin the office, and Mr. Frothingham asked the tended to be eliminated. Not so in the case witness' opinion upon the matter, and he of the will under consideration. In the will told him he thought it would be a very good of Mr. Frothingham the second item is comthing, inasmuch as Mr. Frothingham was go- posed of 17 lines on the first page and 1 line ing away for some time, and it probably on the second page. Through the 17 lines would be better to have some representative on the first page are drawn two pencil marks of his family in the office, and he gave the obliquely crossing each other, while the witness instructions to have the business go eighteenth line of the second item, which is to Mr. Low instead of to himself, as provid- the first line on the second page, is without ed in the original will. Mr. Frothingham cancellation. Through the third item, in said nothing about the business on the day which the bequest of his business is made by the changes were made. It was the day be- Mr. Frothingham to his friend Mr. Dodd, fore when they had the long talk that the is drawn a single and practically vertical instructions were given. In pursuance of lead pencil mark through the first 14 lines, this conversation the witness, Mr. Dodd, leaving 2 lines at the conclusion of the item gave the draftsman instructions to substitute untouched by the vertical mark.' These 2 the name of Mr. Low for himself in the will. lines are canceled by 4 oblique lines run
George J. Ennis testified that he was a ning through portions of them, 2 of which clerk for Mr. Frothingham, and was present extend up into the body above. My reading in his office in December, 1906, with Mr. of the testimony leads me to believe that the Frothingham and Mr. Dodd, and saw 'the mark made by the testator upon this third will on Mr. Frothingham's desk, and he saw item is the single vertical pencil mark to Mr. Frothingham make the pencil marks on which I have referred. The testimony of the the will, and heard him say that he had witness Dodd is somewhat ambiguous upon some changes to make.
this point. He says that Mr. Frothingham The only other persons sworn were the made all of the pencil erasures with the subscribing witnesses to the will, who proved exception of the mark through his own name its due execution.
in the second line of the third item, and, to It is settled that pencil erasures made upon use his own language, “the mark through the face of a will are as effectual to cancel | 'James P. Dodd was made by myself in his the portions obliterated as if done with ink. presence. The mark through 'John Olneye Hilyard v. Wood (N. J. Prerog.) 63 Atl. 7. and 'John J. Edwards' was also made by me The question, however, is whether the eras- in his presence." In the answer from which ures were intended to be the final act of the the foregoing is quoted he mentions oblitertestator by way of canceling portions of his ating his own name twice, and in the testi. will, or whether they were what is called in mony thus literally copied I take it that his the law dependent relative revocation, which, mention of his name refers to the second of course, is not final. The intention with time his name appears in that item. It which the testator makes the marks upon his should be stated in this connection that the will is the crucial test as to whether or not vertical pencil mark through the third item cancellation is intended. Vice Ordinary Ber- runs through the initial letters of the names gen in Hilyard v. Wood (N. J. Prerog.) 63 of Dodd and Edwards. This line was drawn Atl. 9, said that the manner in which the by the testator, unless he stopped above the
event that line was continued by the witness
(Page 3.) Dodd. An inspection of the line both with 77th Street New York City, and all the the naked eye and under the microscope contents in said house and also the house clearly indicates that it is a continuous line and grounds located in Milan Place, drawn by the same hand at the same time, Stratford Place, Surf Lane and Deal
Esplanade, at Deal Beach, Monmouth and, if it were efficacious to cancel all parts County, New Jersey, land all the coi.tents of the item through which it was drawn, or, of said 'house, absolufely and in her own for that matter, the whole item, the names
right. of James P. Dodd, John Olney, and John J. my said wife' my one-half (1/2) inter
I also give, devise and bequeath to Edwards were effectually canceled by that est in the Le Grand Lake Tract of land mark. Now, if Mr. Dodd drew the lines consisting of Twenty-one squadred (2100) through his own name and the names of Old acres, locater! in the cookies of Passaic
and Bergen in the start of New Jersey, ney and Edwards, he did it by making a the other half interest Deing owned by practically horizontal line through his own Pliny Fisk of New York City.dame in both places where it occurs in the item, and by drawing an oblique line through of affairs and one who seems to have been
Mr. Frothingham was undoubtedly a man the name of John J. Edwards, which line ex.
precise about the form in which his will tends for a considerable distance through the should exist. He appeared to be unwilling item, and by drawing several other irregular that his testamentary acts should repose in lines through the end of the item where the
any poorly written or even typewritten form, three names occur. The following is a copy but had his will engrossed by one who was a of the third item, line for line, with straight professional scrivener, a man who wrote marks in ink drawn through it, which marks what is called a "court hand.” After the closely approximate the pencil marks upon emendations referred to were made upon the the face of the item:
face of his will, he directed Mr. Dodd to take (Page 2.)
it to the man who engrossed it, and, to use THIRD.--I give and bequeath to my
his own language, "have him (the scrivener] friend MWAS P. DOBD my business
make a draft of it according to the direcof negotiating time and call loans, es
tions." "Make a draft of it” to my mind tablislied in 1881, conducted at No. ? Wall Street, New York City, including my fur
means make a draft of a will for execution niture and furnishings connected there
by the testator. The "directions" referred with, and I authorize him to continuo
to could be nothing more than the erasures the said business and direct that the income derived therefrom shall go to
upon the face of the will plus the verbal dechim absolutely and in bis own right,
larations of Mr. Frothingham to Mr. Dodd. It is my wish art I hereby request
It is a singular thing that upon receiving the the said Jamal b Darkt to retain JOHN will with the marks of cancellation upon it, OLNEY and CHXUDIARDS Hor in my emples in Pheir present position so
and hearing the verbal directions from Mr. long as they shall faithfully discharge
Dodd, the scrivener should have made a new tlre duties appertaining thereto.
draft conta ng as the third item, a devise The fourth item is obliterated by an oblique and bequest to the testator's daughter, Mrs. pencil mark drawn entirely through the item, Low, of the house and its contents which as shown approximately in the subjoined copy were devised and bequeathed to her in the of that item, marked in ink:
fourth item of the original will, and through
the entirety of which item in the original (Page 2.)
will a lead pencil mark was obliquely drawn. FOURTH. I give, devise and bequeath What occurred, then, was this: The will to my beloved daughter LILLIAN LOVE the house and land known and desig
with the obliterations upon it was sent to the nated as No. 84 Carleton Street, East
scrivener, with request to make a new draft Orange. New Jersey, together with all
according to directions, and the directions, the contents of said house absolutely
aside from those that the marked will would and in her owy right.
naturally indicate, were disclosed by Mr. The fifth item was canceled by vertical Dodd, and the draft of a new will, when sent pencil marks drawn clear through the item over to Mr. Frothingham, gave the business from top to bottom, and in that item in the to Mr. Low and the house No. 84 Carleton last paragraph in addition to the vertical pen- street, East Orange, to Mrs. Low, coupled cil line the word "Sold” is written in pencil, with a devise and bequest of all the testator's so that some part of the pencil writing ex- residuary estate to his wife, whom he ap. tends over the last four lines of the item, pointed his executrix with power of sale of which is a bequest to the testator's wife of a bis real estate. Mr. Dodd says that, when half interest in a tract of land located in the draft came back, there was a clause in it Passaic and Bergen counties, in this state. that did not suit Mr. Frothingham, and that The following is a copy of the fifth item, he threw it aside, and put the old will in the showing approximately how it is marked: safe, and the draft was found after his death
in a drawer in his desk with erasures upon (Page 2.)
it made by lead pencil marks. The lead penFIFTH:--I giye, devise and bequeath to my beloved and devoted wife MAUD
cil marks on this draft are drawn practicalLE GRAND FLOTHINGHAM, the house amilly perpendicularly through the first, second,