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the mortgagee as an indebtedness constituting part of the consideration, and that the remainder of the consideration was a debt due by one of the mortgagors only. For that reason it was held to be an improper and unlawful attempt to prefer creditors and fraudulent and void as to creditors. But as to Mrs. Boice it was held good, because her mortgage, though subsequent in execution, was given by the same mortgagors, and she had full notice of the prior mortgage, and was therefore not a "bona fide purchaser," but must content herself with taking whatever interest the mortgagors had when they executed their mortgage. The notice to Mrs. Boice of the prior mortgage was an actual notice; hence the question still remains whether the record in this case became, in the absence of any actual notice to Longley, constructive notice which binds him. mortgage to Sperry was properly acknowledged; the certificate declares that the contents were made known to Brock, etc. In fact the mortgage was a New Jersey form with a New Jersey form of certificate. Hence it was entitled to record, and is not within the category of the two assignments of the older mortgage, whose acknowledgments were defective, and it only remains to inquire whether, under our statute, it is constructive notice. I have already cited a part of the twentyfirst section of the act respecting conveyances of 1898, which shows that chattel mortgages are entitled to be recorded. By the fiftythird section, if properly acknowledged and recorded, all such "instruments shall be thereafter notice to all subsequent judgment creditors, purchasers, and mortgagees of the execution of said deed or instrument and of the contents thereof." This statute is peremptory, and in effect declares that the record of the Sperry mortgage was notice to Longley of the existence of the mortgage and its contents.

Counsel for Longley, having his attention called to this aspect of the case, argues that in the case of Boice v. Conover, supra, Mrs. Boice had actual notice of the former mortgage, and he attempts to distinguish between actual notice and the constructive notice resulting from registry. The language of the act as to the effect of registry is explicit, "shall be notice," and I am unable to distinguish between actual notice and constructive notice due to the statute. No authority was produced by counsel to sustain his argument in that respect, and in my judgment to sustain the distinction as claimed would have the effect of destroying the whole of the registry act in the matter of notice.

The result, then, to which I have come is this: That Longley's mortgage is the first lien on the two-thirds interest in the chattels, and also that Longley has a partner's lien on the other one-third for any amount which, upon taking the account, it may be found that Brock has reduced his propor*ionate share in the property, if any, by over

draft. The evidence does not show how the amount for which Longley sold his interest to Brock was arrived at, and probably the absence of Brock from the state will render the taking of the account very difficult, and perhaps the books have not been kept in such a manner as to render it possible under any circumstances.

Be that as it may, unless the parties can agree upon a partition of the funds upon a basis of two-thirds to one-third, or some other basis, an account must be taken. I will settle the decree upon notice. The question of costs is reserved.

(72 N. J. E. 821) SPEAR. LOCUST WOOD CEMETERY CO. et al. (Court of Chancery of New Jersey. April 22, 1907.)

1. EXEMPTIONS-CEMETERY LANDS-SALE ON

FORECLOSURE.

Act April 8, 1875, § 8 (Revision, p. 102; Gen. St. p. 350, 8), exempts from sale under execution the cemetery lands and property of any association formed pursuant to that act or otherwise incorporated. Complainant, through his attorney in fact, sold land to a cemetery association with full knowledge that it was for use as a cemetery. Held, that he was precluded under the statute from foreclosing the purchase-money mortgage on the land. 2. SAME-STATUTES-REPEAL.

Act March 14, 1851, § 10 (P. L. 1851, p. 257), exempted the lands of cemetery associations formed thereunder from sale under execution. Act April 8, 1875 (Revision, p. 1396), repealed the act of 1851. Act March 14, 1879 (P. L. 1879, p. 318; Gen. St. p. 360, § 56), amended section 10 of the repealed act of 1851. Held, that the act of 1879 does not repeal the act of 1875.

3. SAME-LAND COVERED BY MORTGAGE.

Act April 8, 1875, 8 (Revision, p. 102; Gen. St. p. 350, § 8), exempting from sale under execution the cemetery lands and property of cemetery associations, applies only to land of the association actually brought into use as a cemetery, though Act May 9, 1889 (P. L. 1889, p. 418: Gen. St. p. 356, § 40), authorizes the holding of 125 acres for cemetery purposes. 4. SEQUESTRATION - ENFORCING DECREE OF FORECLOSURE-INCOME FROM CEMETERY

LANDS.

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Act March 21, 1881 (P. L. 1881, p. 158; Gen. St. p. 353, § 18), provides that the rents, etc., of land held by a cemetery association may be taken and sequestered and applied to the payment of judgments against the association, and the court of chancery may appoint a receiver to take and apply the rents, etc., for that purpose. Held that, where the lands of

a cemetery association not used as a cemetery are sold to satisfy a mortgage on the entire tract owned by the association, and the proceeds are insufficient to satisfy the amount due, a receiver may be appointed to take possession of the cemetery tract reserved from sale, and sequester the income for application to the amount remaining due under the decree of foreclosure.

Suit by Charles C. Spear against the Locust Wood Cemetery Company and others to foreclose a purchase-money mortgage. Decree rendered.

The bill seeks to foreclose a purchase-money mortgage made November 17, 1902, by the

Locust Wood Cemetery Company to complainant. The defense is made by the provisions of section 8 of the cemetery act of 1875 (Revision, p. 102; Gen. St. p. 350, § 8) that the cemetery lands covered by the mortgage cannot be sold to satisfy the mortgage debt.

French & Richards, for complainant. John F. Harned, for defendants.

LEAMING, V. C. Defendant Locust Wood Cemetery Company was incorporated April 29, 1902, under the general corporation act. The object for which the corporation was formed is defined in its certificate of incorporation as "to maintain cemetery or cemeteries." November 17, 1902, complainant conveyed to defendant Locust Wood Cemetery Company the tract of land now in question, and at the same time that company executed to complainant a purchase-money mortgage on the land conveyed to secure the payment of a bond given by the company for a part of the purchase price. Defendant Locust Wood Cemetery Company brought into use as a cemetery a portion of the mortgaged premises and operated as a cemetery company until November 17, 1904, when 125 acres of the mortgaged premises, including the part in use as a cemetery, was conveyed by it to defendant Locust Wood Cemetery Association, the latter corporation having been formed under the cemetery act of 1875 (Revision, p. 100; Gen. St. p. 349) for the purpose of taking over that portion of the land. The present foreclosure of the mortgage is resisted as to the 125 acres conveyed to the latter company under the claim that the statute exempts the land from sale.

Section 8 of the act of April 8, 1875 (Revision, p. 102; Gen. St. p. 350, § 8), exempts from sale under execution "the cemetery lands and property" of any association formed pursuant to that act, "or otherwise incorporated." This section is substantially the same as section 10 of the act of March 14, 1851 (P. L. 1851, p. 257). As is suggested in Rosedale Cemetery Association v. Linden Township (N. J. Sup.) 63 Atl. 904, the purpose of this legislation is the protection and preservation of the places where the dead are buried.

The contention is made on behalf of complainant that the present mortgage, as a purchase-money mortgage, will be protected from the operation of the section. This contention cannot prevail. If complainant could be said to occupy the position of one who had taken a mortgage on lands not devoted to use as a cemetery, I entertain no doubt that the subsequent dedication of the land to cemetery purposes, without the consent of the mortgagee, could not, under our Constitution, operate to impair the mortgage security. But it is impossible to give to complainant the benefit of that status. The evidence disclosed that the cemetery company tentatively arranged with complainant's attorney in fact for the purchase of this land for use as a cemetery sev

eral months prior to the sale, and that company was permitted by complainant's attorney in fact (who afterwards conveyed the land for complainant) to take possession and lay out a portion of the land into cemetery lots as early as August, 1902, and during that time the attorney in fact referred to was a member of the cemetery company. It is entirely clear that the sale of the land was made by complainant, through the attorney in fact, to the cemetery company, with full knowledge that it was for use as a cemetery, and the mortgage must be regarded as having been accepted by complainant with a full knowledge of and acquiescence in the proposed use of the land. Under these circumstances the rights of the mortgagee cannot properly be considered as free from the burden imposed by the statute.

The contention is also made that the provisions of section 8, above referred to, are superseded by an act of March 14, 1879 (P. L. 1879, p. 318; Gen. St. p. 360, § 56). The act of 1879 is a supplement to the act of 1851, above referred to, and amends section 10 of that act. The act of 1851 was repealed in 1875. The curious legislation thus presented is an amendment of a repealed statute. In the consideration of this statute in Newark v. Mount Pleasant Cemetery Company, 58 N. J. Law, 168, 173, 33 Atl. 396, the Court of Appeals finds no legislative intent to apply its provisions to cemetery corporations other than those incorporated under the act of 1851.

Having reached the conclusion that section 8 of the act of 1875 operates to exempt "the cemetery lands and property" of defendants from sale under a decree of foreclosure of the mortgage held by complainant, it becomes necessary to determine whether all the land covered by the mortgage is so exempt, and, if not, what part thereof.

The evidence discloses that but a small portion of the land covered by the mortgage has been brought into use as a cemetery. About 100 burial lots have been sold, and about 30 interments have been made. The contention is made that as the act of May 9, 1889 (P. L. 1889, p. 418; Gen. St. p. 356, § 40), authorizes 125 acres to be held for cemetery purposes, and, as that exact acreage was accordingly conveyed to the Locust Wood Cemetery Association, the entire 125 acres will be exempted from sale. This contention cannot be maintained. The exempting section (section 8) defines as exempt from taxation and also from sale under execution "the cemetery lands and property" of the association. I think that the only reasonable construction of the language used is that the land intended by the Legislature to be exempted from taxation and from sale under execution is the land actually brought into use for cemetery purposes. With no limitation at that time existing upon the quantity of land which a cemetery company could own, the legislative intent to exempt from taxation and

draft. The evidence does not show

amount for which Longley sold

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SPEAR

(Court

SPEAR ▾ LOCUST WOOL

Cemetery Company plain eral months prior to .

Athe cemetery act of 1871 Revi- ney in fact (who afterwands "ING

efense is made by the pistons pany was permitted by 0075,

ered by the menace can lay out a portion of the land info or metery

St. p. 35, 8 tht the land for complainant) to take possesso d

Ay the mortgage debt. for complainant. John

ts.

orated April 29, ney in fact, to the cemetery company, with ant Locust Wood was made by complainant, through the attor on act. The full knowledge that it was for use as a ceme as formed is tery, and the mortgage must be regarded as burden imposed by the statute. ration as having been accepted by complainant with a any cumstances the rights of the mortgagee can ed to proposed use of the land. Under these cir full knowledge of and acquiescence in the is entirely clear that the sale of the land not properly be considered as free from the was a member of the cemetery company. It that time the attorney in fact referred to lots as early as August, 1902, and dur '&

No

Visions of section & above referred to, are The contention is also made that the prorded by an act of March 14, 1879 (V. La

the mortgagee as an indebtedness constituting part of the consideration, and that the remainder of the consideration was a debt due by one of the mortgagors only. For that reason it was held to be an improper and unlawful attempt to prefer creditors and fraudulent and void as to creditors. But as to Mrs. Boice it was held good, because her mortgage, though subsequent in execution, was given by the same mortgagors, and she had full notice of the prior mortgage, and was therefore not a "bona fide purchaser," but must content herself with taking whatever interest the mortgagors had when they executed their mortgage. The notice to Mrs. Boice of the prior mortgage was an actual notice; hence the question still remains whether the record in this case became, in the absence of any actual notice to Longley, constructive notice which binds him. The mortgage to Sperry was properly acknowledged; the certificate declares that the contents were made known to Brock, etc. In fact the mortgage was a New Jersey form with a New Jersey form of certificate. Hence it was entitled to record, and is not within the category of the two assignments of the olde mortgage, whose acknowledgments were ở fective, and it only remains to inquire wh er, under our statute, it is constructive n I have already cited a part of the t first section of the act respecting conv of 1898, which shows that chattel r are entitled to be recorded. third section, if properly acknov recorded, all such "instrumey. thereafter notice to all subseg creditors, purchasers, and m execution of said deed or ir the contents thereof." T emptory, and in effect de ord of the Sperry mor Longley of the existenc its contents.

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acations. sted on the red as required ract. There was a which prohibited any without a resolution of

d an express agreement in he parties as to the cost to e contract price for the same. ovision in the instrument under of "Subcontractor Notice" was that, owner at any time desire any varia

work or any additional work exesame might be proceeded with after rect or owners should order the same, g, stating, when possible, the price to thereto. At the trial the court directed t for the extras, if the evidence showed Architect's order in writing for the extra without a resolution of the city being passed authorizing the same. Held, on reew, that the latter proviso applied to subconactors only, and that the proviso first named was binding upon the contracting parties here, And that unless plaintiff would remit from the verdict the amount of the extras it must be et aside and a new trial granted. (Syllabus by the Court.)

supplement to the act of 1831,

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us as follows: "Should

y time desire any variation ..ork as planned and specified, or aid the owners desire any additional work executed, the same shall be proceeded with, after the architect or owners shall order it in writing, and stating when possible the price to be paid thereto."

The case shows, and it is admitted, that the extra work was not authorized by a resolution of the mayor and council of the city, but that it was ordered by the architect in writing. When the learned trial judge came to deal with the case in his charge, he instructed the jury that, as to the legal question raised whether any recovery can be had without such a resolution or whether under a later clause in the contract the plaintiff is entitled to rely upon the mere writing of the architect, he had resolved that question for the present in favor of the plaintiff, and directed the jury that, if they found the orders were given by the architect in writing and that the work was done properly and the charges for those items were either fixed by the writing or were reasonable charges, they should find those amounts in favor of the plaintiff in addition to the balance of the contract price.

there was error in this construction tract in question. Our view is that 'n first named applied to this conhat the other provisions apply ors only, declaring their obligaactor and to the owner. And nt we think the phrase in notice, "should the owners al work executed," imof the owners in this ed by a resolution of he main portion of

is also that the the ground of ce shows that 'll of the arission, the ? item of 1 of the

SPEAR ▼. LOCUST WOOD CEMETERY CO,

metery act of 1873 (Revi. 9. 350, § 8) that the is made by the provisions the mortgage canzage debt. Cemetery Company to complain

nt. John

eral months prior to the sale, and that com ney in fact, to the cemetery company, with on necepted by complainant with a was a member of the cemetery company. was made by complainant, through the attor knowledge that it was for use as a come is entirely clear that the sale of the land lots as early as August, 1902, and during nd the mortgage must be regarded na that time the attorney in fact referred to lay out a portion of the land into cemetery ney in fact (who afterwards conveyed thi land for complainant) to take possession and pany was permitted by complainant's attor

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JV. FISHER et al.

cery of New Jersey. May 25, 1907.)

FORECLOSURE-Costs-SEARCH

ANG TITLE. Under P. L. 1906, p. 269, providing that a purchaser of real estate at foreclosure sale, etc., shall be relieved from his bid if before delivery of the deed he satisfy the court of the existence of any substantial defect in or cloud on the title which would render the title unmarketable, or of the existence of any lien or incumbrance thereon, unless a reasonable description of the estate or interest to be sold and of the defects in the title and liens or incumbrances thereon, with the approximate amount thereof, be inserted in the notices and advertisements of sale and in the conditions of sale, expenses incurred in procuring searches showing the state of a title since the date of a mortgage were necessary for the proper foreclosure thereof, and taxable under rule 113a in favor of the party foreclosing the mortgage, though expenses incurred in searching the title anterior to the date of the mortgage were not taxable.

[Ed. Note.-For cases in

vol. 35, Mortgages, 1662 point, see Cent. Dig.

Bill by Roland D. Armstrong against Agnes Fisher and others. Heard on bill, answer, replication, and proofs. Decree for defendants in part.

Condict, Condict & Boardman, for complainant. Tennant & Haight, for defendant.

is

GARRISON, V. C. It is not necessary to advert to the issues raised and decided in this suit. The only question to be determined is one of costs. The suit is one to foreclose a mortgage held by the complainant, and the solicitor of the complainant caused, not only the customary searches to be made from the date of the mortgage, but also searched the title anterior to the date of the mortgage for the purpose of disclosing any defects in or liens or incumbrances thereon. His purpose in doing this was so that he could insert in the notice of sale and in the conditions thereof a reasonable description of the defects in the title and the liens or incumbrances thereon, so that the purchaser at the sale could not be relieved of his bid on account of the existence of such defects, liens, or incumbrances. The insertion in the notice of sale, and in the conditions thereof, of the existence of the defects in the title and of the liens and incumbrances thereon has the effect of preventing the purchaser from obtaining relief from his bid by force of the statute (P. L. 1906, p. 269).

The solicitor of the complainant requested me to certify, in pursuance of rule 113a, that my opinion the certificates of search preted by him were necessary for the proper losure of his mortgage, upon which cere he could obtain the taxation of the n his costs. I will certify that the pense incurred in procuring searches showing the state of the title since the date of the mortgage were necessary for the proper foreclosure thereof, and, therefore, under rule 113a and the statute (P. L. 1902, p. 540) are properly taxable in favor of the complainant. I cannot certify that the expenses incurred for searching the title anterior to the date of the mortgage are taxable.

The complainant contends that these search fees should be included, because they were rendered necessary by the statute above referred to (P. L. 1906, p. 269). I do not concur in this view. In my view, that statute does not cast any duty upon the complainant, or upon any of the parties in the suit, but does extend to each of them a privilege. Before the enactment of this suit a purchaser at a judicial sale in New Jersey took such title as the proceedings showed, and could not claim to be relieved because of the existence of prior incumbrances or of defects in the title. The effect of this statute is to prevent the bidder or purchaser from being relieved, if the defects in the title and the liens and incumbrances thereon are brought to his notice before the sale.

In my view, therefore, any one who desires to bring these things to the notice of the intending purchasers may do so, but it is not the duty of any one to do so. A mortgage may be foreclosed, and the equity of redemption disposed of, and the title which a sale under the mortgage is capable of conveying be conveyed, without necessarily searching back of the date of the mortgage. If it be to

from sale all lands which cemetery companies might acquire cannot be reasonably assumed from the language used. The natural significance of the words "cemetery lands," as well as the manifest purpose of the legislation, indicates an intention to extend the exemptions only to lands actually used for cemetery purposes. This view of the legislative purpose led the Supreme Court, in Rosedale Cemetery Association v. Linden Township, supra, to construe the word "property," as used in this section, as inapplicable to personal property.

The view here taken renders necessary the ascertainment by exact boundaries of the lands which shall not be subject to the decree of sale. For that purpose a master will be appointed whose duty it will be to ascertain and report the boundaries of the land which is in use for burial purposes. Upon the confirmation of that report a decree will be made for the sale of the remainder of the land in satisfaction of the amount due on the mortgage held by complainant. If the proceeds of sale are not sufficient to satisfy the amount due, a receiver may be appointed pursuant to the act of March 21, 1881 (P. L. 1881, p. 158; Gen. St. p. 353, § 18), to take possession of the cemetery tract reserved from sale, and sequester the income for application to the amount remaining due under the decree of foreclosure.

(75 N. J. L. 106)

MCLAUGHLIN v. MAYOR AND COUNCIL OF CITY OF BAYONNE, (Supreme Court of New Jersey. June 10, 1907.)

MUNICIPAL CORPORATIONS-BUILDING CONTRACTS-CONSTRUCTION-LIABILITY FOR EX

TRAS.

The plaintiff brought suit to recover of a city municipality the balance due on a contract for plumbing, gas fitting, etc., in a new police station house, and also for a bill of charges for extra work outside of the specifications. The payment of the extras was resisted on the ground that they were not ordered as required by the provisions of the contract. There was a clause in that writing which prohibited any extra work being done without a resolution of the city council, and an express agreement in writing between the parties as to the cost to be added to the contract price for the same. A further provision in the instrument under the heading of "Subcontractor Notice" was that, should the owner at any time desire any variation of the work or any additional work executed, the same might be proceeded with after the architect or owners should order the same, in writing, stating, when possible, the price to be paid thereto. At the trial the court directed a verdict for the extras, if the evidence showed the architect's order in writing for the extra work without a resolution of the city being first passed authorizing the same. Held, on review, that the latter proviso applied to subcontractors only, and that the proviso first named was binding upon the contracting parties here, and that unless plaintiff would remit from the verdict the amount of the extras it must be set aside and a new trial granted.

(Syllabus by the Court.)

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HENDRICKSON, J. The plaintiff obtained a verdict in the above cause at the Hudson circuit for $1,713.39. Of this amount $1,405.59 was admitted to be due the plaintiff for the balance due him, with interest, under a contract with the city for plumbing, gas fitting, and heating in the police station house lately erected in said city. The balance of the verdict ($307.80) represents a charge for certain extras incurred by variations and additions to the work provided by the specifications; the payment of which is resisted by the city on the ground that no legal liability for such payment exists, and that none was shown at the trial. The plaintiff claims that the items for extra work were incurred in accordance with the provisions of the contract. It is therein provided that such alterations or additions may be made, should the city through its committee during the progress of the work so desire; the contract price to be added to or subtracted from according to changes made with the proviso added "that no extra work shall be had or done without a resolution of said city and an express agreement in writing between the parties hereto as to the cost to be added to the price of this contract because of such extra work." There was a further clause in the contract under the heading "Subcontractor Notice," which reads as follows: "Should the owner at any time desire any variation of the work as planned and specified, or should the owners desire any additional work executed, the same shall be proceeded with, after the architect or owners shall order it in writing, and stating when possible the price to be paid thereto."

The case shows, and it is admitted, that the extra work was not authorized by a resolution of the mayor and council of the city, but that it was ordered by the architect in writing. When the learned trial judge came to deal with the case in his charge, he instructed the jury that, as to the legal question raised whether any recovery can be had without such a resolution or whether under a later clause in the contract the plaintiff is entitled to rely upon the mere writing of the architect, he had resolved that question for the present in favor of the plaintiff, and directed the jury that, if they found the orders were given by the architect in writing and that the work was done properly and the charges for those items were either fixed by the writing or were reasonable charges, they should find those amounts in favor of the plaintiff in addition to the balance of the contract price.

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