it would not have been compelled to bring them into the foreclosure. (3) The claim that a solicitor of this court attending for the bank at the foreclosure sale made representations to the complainant in this cause before he purchased which estopped the bank from enforcing against him the rights it acquired by the assignments of the certificates of sale is not made out by proofs. [Ed. Note.-For cases in point, see Cent. Dig. vol. 35, Mortgages, §§ 1556. 1557.]

(Syllabus by the Court.)

Bill by Sylvan G. Bushey against the National State Bank of Camden and others. Dismissed.

Ralph W. E. Donges, for complainant. Edward Dudley, for defendants.

MAGIE, Ch. The purpose of this bill is to procure a decree declaring null and void certain certificates of sale of lands for taxes assigned to and held by the National State Bank of Camden, and an injunction restraining the defendants from assigning said certificates, or proceeding to collect the sums due thereon, or from applying for a deed in fee simple for the lands named in said certificates. The case has been brought to hearing upon the bill, answer, and replication, and a stipulation of the parties that the affidavits annexed to the bill, and the affidavits annexed to the answer, shall be considered and treated as depositions in the cause. From these affidavits there are certain facts appearing without contest. On the 10th of July, 1903, the complainant, Bushey, bought from the sheriff of Camden county three tracts of land which were exposed by the sheriff to public sale. The sale was made upon a fieri facias issued out of this court, and the writ was issued upon a decree in a cause in which Heulings Lippincott, one of the defendants, was complainant, and Aaron Ward and his wife were defendants. That bill was filed for the foreclosure of two mortgages given by Aaron Ward to Heulings Lippincott, and Aaron Ward and his wife were the sole defendants, so far as appears. The mortgages were made by Ward to Lippincott, not for any indebtedness due to Lippincott, but to secure the National State Bank of Camden money owed to it by Ward, and the mortgages were made to Lippincott because he was the president of the bank. While the mortgages were outstanding, and before the bill to foreclose them was filed, the mortgaged lands, including those bought by complainant at sheriff's sale, had been sold for taxes. Some of them had been bought by the city, and one tract by a third person. The sale was under the Martin act, and certificates were duly issued to the purchasers. The bank purchased and took assignments of all the certificates affecting complainant's lands before the bill to foreclose the mortgage was filed. It was about to apply, or had applied, to the city for a deed for said lands. It further appears that

by the sheriff some conversation occurred between the complainant and a solicitor of this court, who appeared at the sale in behalf of the bank. What the conversation was is a matter of contest. The complainant and the solicitor disagree in their recollection of it, and there is no other evidence of what was said by the parties to the conversation.

It is first suggested that the foreclosure proceeding was defective, in that the National State Bank of Camden, for whose use the mortgages were held, should have been made a party thereto. The complainant, however, having bought the lands under the decree made in that cause, and having taken the sheriff's deed, after the sale had been confirmed, without objection from the defendants in that cause, or from him as a purchaser, cannot, in this collateral way, object to the proceedings therein, or found any equity upon the supposed error in the foreclosure. If the defendants in that cause might have objected to its being proceeded with in the absence of the bank, the cestui que trust of Lippincott (Tyson v. Applegate, 40 N. J. Eq. 305, and Johns v. Outwater, 55 N. J. Eq. 398, 36 Atl. 483), they presented no objection, and the cause went to a decree. Complainant's purchase on the fieri facias issued on the decree conferred on him the title which Lippincott had acquired by the mortgages, and the title of the mortgagors who made them. Boorem v. Tucker, 51 N. J. Eq. 135, 26 Atl. 456; Wimpfiemer v. Prudential, etc., 56 N. J. Eq. 585, 39 Atl. 916; Champion v. Hinkle, 45 N. J. Eq. 162, 16 Atl. 701. If the bank were setting up any claim under the mortgage taken by Lippincott for its benefit, doubtless, upon the facts shown that the sale produced all that was secured thereby, which presumably has been paid to it, an injunction against the presentation of that claim would be allowed; but the mere fact that the bank was not a party to the foreclosure does not present any equitable ground for relief. But the contention is that, if the bank had been made a party, it would have been obliged to put in and enforce in that proceeding the rights which it had acquired under the assignments of the certificates of sale, and that it was inequitable to so conduct that cause as to omit the claim which the bank had in that respect. If the complainant had sought relief from his contract to purchase, or opposed the confirmation of the sale, the existence of an outstanding lien not affected by the foreclosure proceedings would not have justified relieving him from his obligation. The lien of the taxes and the sales thereunder could have been discovered from the public records. A purchaser at a judicial sale who neglects to acquire such information, and deliberately assumes the hazards of buying in ignorance, must bear the consequences of his negligence. Hayes v. Stiger, 29 N. J. Eq. 196.

It is obvious that the contention now under

66 A.-38

bank, if made a party to the foreclosure suit, would have been compelled to set up therein its interest as an assignee of the tax certificates. When taxes are unpaid, a municipality may enforce the lien which is given to that burden upon the land by a sale under the provisions of the sixth section of the Martin act, which seems to be yet substantially in force. The purchaser at a sale for taxes may give notice of the sale to the mortgagee holding a mortgage upon the lands, and the mortgagee may thereupon redeem the lands by paying to the treasurer of the city for the use of the purchaser the sum paid by the purchaser, with interest. 3 Gen. St. p. 3372, § 415. By the eighth section of a supplement to said act, approved April 18, 1889, a mortgagee who redeems lands sold for taxes may retain a first lien thereon for the amount paid to procure the redemption, with lawful interest, and the payment of other taxes afterward assessed thereon. 3 Gen. St. p. 3381, § 442. By the second section of a supplement to the same act, approved May 23, 1890, a redeeming mortgagee is given power to enforce a lien acquired by the redemption by any appropriate proceeding which the section provides may be instituted and maintained, either independently of, or before, or in connection with, proceedings to enforce the mortgage. 3 Gen. St. p. 3383, § 449. Under this legislation, it is plainly open to question whether, if the bank in the case under consideration had been notified by the purchasers of the mortgaged premises at the sale for taxes, and had redeemed the property, it would not have been compelled, if made a party to the foreclosure, to enforce its claim in connection therewith. But this was not the transaction which occurred. It does not appear that any notice whatever was given to the bank, and the bank did not, in fact, redeem under the provisions above referred to. On the contrary, the bank proIceeded to acquire the title or interest which the purchasers at the tax sale had acquired, and which was represented by the certificates of sale held by them. The city was the purchaser of some of the tracts. By the provisions of a supplement approved April 16, 1891, the city was expressly authorized to become a purchaser at a sale of lands for taxes, the same as any other purchaser, and the certificate of sale is to be made to the city, and the mayor, in behalf of the city, may cause the notice otherwise required to be served on the owners and mortgagees of the land purchased, and the city may be entitled to a deed in the same manner as any other purchaser, if the lands are redeemed from the sale. 3 Gen. St. p. 3384, § 453. By a supplement, approved March 23, 1895, the certificate of sale issued to any city for lands thus bought may be assigned to any person. 3 Gen. St. p. 3390, § 485. By the provisions of the further supplement, approved March 16, 1893, an assignee of a certificate of sale given under the acts may give notice to the

mortgagees and owners and acquire the title to the lands and receive a deed therefor, in the same manner as if the assignee had been the original purchaser at the tax sale. 3 Gen. St. p. 3389, § 478. It is to be noted that, although the sheriff's sale in this case was made after the passage of the act for the assessment and collection of taxes approved April 8, 1903, the provisions of the sixty-sixth section of that act prevented its operation on taxes previously in default, for the act was expressly declared to take effect only on the 20th of December, 1903. Under the above provisions it is obvious that the bank acquired by the purchase and assignment of the certificates of sale of the mortgaged lands a lien which was superior to the lien of the mortgage in which it had an interest. If the bank had been a party to the foreclosure proceedings, it need not have included the lien thus acquired in its demand for relief. If it had been made a party defendant and had answered, claiming a prior lien, it might have been dismissed from the case, and probably would not have been required to present its claim except for the purpose of redemption. As the holder of a prior lien claim which, if made a party to the foreclosure proceeding, the bank would not have been obliged to enforce therein, no equity arises because the bank was not made a party.

It is further contended that the assignments of the certificates of sale to the bank vested no property or interest in it, because of the limitation on the power of national banks contained in the legislation of Congress. It is conceded that a national bank may acquire property of this sort to protect debts due to it. As it appears in this case that the bank, as a cestui que trust in the mortgage made to Lippincott, held an interest in the lands in question, and as it is proved that the bank purchased the certificates of sale and procured their assignment to it for the purpose of protecting its mortgage interest, I deem it free from any doubt that the bank lawfully acquired such interest as was passed to it by the assignments.

It is lastly contended that the solicitor who attended this sale in behalf of the bank procured complainant to purchase the three tracts by the representation that, if complainant bid for them a certain amount, all claims of the bank would be discharged. The contention is that the bank is now estopped from setting up a claim which it then held. The solicitor in giving an account of the interview testifies that the conversation related only to the claims which were the subject of the sale, that the fieri facias and a statement made therefrom were before the parties, and that any assertion that the bids would cover the claims related to the claims contained in the fieri facias, and which were calculated with interest and costs. If the complainant insists that the solicitor's language went further than to represent the amount of the claims for which the sheriff

the husband who had been in possession of the premises. The master has not made any report against the husband by reason of the value of this occupancy, but has simply reported the receipts for rents and payments. The husband is not aggrieved by reason of this failure to report on the value, and the exception must be overruled. The third exception is really a reargument of the question decided on the former hearing, namely, whether the court has power under the statute to order the payment of a gross sum to the wife out of the proceeds of sale as the value of her life estate against the consent of the husband as entitled to a contingent estate in remainder. This argument is perhaps irregular, but inasmuch as a question of some importance involving the correctness of that decision is now raised, and was not raised at the original hearing, and this hearing is virtually an application for final decree in the cause on the exceptions, I will consider the case as open for reargument on the new point now raised, rather than pu the parties to the expense or delay of a formal application for rehearing or an appeal for the purpose of arguing that question.

The point is that the husband and wife were married in 1878, and before the passage of the law authorizing the payment of a sum in gross to the wife out of the proceeds of sale as the value of her life estate, and that the law was passed after the husband's title accrued. It is now claimed that, as against the husband, this provision of the latter law is unconstitutional, as depriving him of a vested right in property, and that it cannot be enforced against his consent. There is no doubt that the conversion of the lands into money by the sale under foreclosure is a valid conversion under a superior right as to all persons, and the question therefore is whether, on the conversion of lands into money on a forced sale in foreclosure, the Legislature has the right to terminate at its discretion the period when the money resulting from the sale and the interest therein of a person sui juris shall cease to be land or to be held as if it were land. The general course of legislation on this subject in the different states has recognized (and without exception, so far as I can find) the power of the Legislature to fix the terms and conditions on which money resulting from the conversion of lands by sales in legal proceedings should be finally disposed of as money to the parties who were interested in the lands and legally capable of receiving the proceeds as money. For example, Scribner on Dower (2d Ed.) pp. 653, 654, gives the legislation in the different states on the payment to the widow of a gross sum out of the proceeds of sale of lands in which there was a dower right. Some of them, including New York and New Jersey, give the option to the widow alone to accept a gross sum out of the proceeds of sale, or to take the annual interest. Other states by

legislation require the consent of all parties interested in the funds before the gross sum can be given. In some others the determination and payment of the gross sum on the application of any party interested in the proceeds is left to the discretion of the court. In Freeman on Partition (2d Ed.) § 549, p. 726, he says that on the sale and distribution of proceeds of sale of lands in partition the court has the power (among other things) to determine the value of estates for life or years, and of all future estates, vested and contingent, and to direct the amount to be paid to the holders of each of such estates. I find no cases holding that the Legislature has not this power relating to the continuance of interests in the proceeds of sale as money, and the power to terminate this by fixing the present value of the estates of parties sui juris who are interested in the money. In our state, as in New York, the option is given to the tenant for the life estate or for years alone, and it therefore requires her assent alone.

There is no question here of the deprivation of property, for the amount to be paid to the wife is only the value of her interest, and the husband's rights beyond that are secure. So far as the mere question of property right is concerned, the conversion of lands into money under a superior right, to which the tenure of the lands was subject, terminates ipso facto the precise property right in the lands, and the proceeds of sale in strict legal theory are held not as lands, but rather as in lieu of the lands, for the ultimate purpose of compensating the parties interested in the lands. The money cannot in fact be lands, and, as money, is subject to contingencies (loss, shrinkage, etc.) from which estates in the lands itself would be free. Interest on the money during life is one way of giving compensation to the life tenant; but it is not the only method. A gross sum for the value of the life estate is another way, and it is within the power of the Legislature either to fix this method of compensation or to confer upon the courts the power of fixing it and its terms and conditions. This selection of the methods for compensation is a necessary result of the lawful conversion of the lands into money by the superior right, and is an incident to which the estates in the lands are subject. In Ross v. Adams, 28 N. J. Law, 161, 179 (1859), where the purchase price of lands taken in eminent domain proceedings was paid into court, the Supreme Court, in the absence of any statute, directed payment of sums in gross for the value of all the interests where the parties were sul juris and could receive it. The Court of Errors in Adams v. Ross, 30 N. J. Law, 505, 82 Am. Dec. 237, reversed the decree on the point that the interests were not properly declared by the Supreme Court, and that the husband to whom a payment was directed, was not entitled to any interest in the lands or proceeds. The judgment reversing directed the

investment of the funds, but no question seems to have been made in the decision as to the power to direct a gross sum to be paid out of the proceeds, and the form of the judgment, which may have been by consent, cannot be considered as an adjudication overruling the opinion of the Supreme Court as to the power to direct a gross sum. It may, however, have the effect of rendering the opinion of the Supreme Court an obiter dictum and of confining its effect on the point now in question to the weight of the opinion of the judges delivering it. This aspect of it, when the question of the constitutionality of a law is raised, is important, for it shows that learned judges appeared to have no doubt of the validity of such procedure, even in the absence of statute, and this circumstance, taken in connection with the general course of legislation and practice under it, apparently unquestioned in this state as well as others, is sufficient to solve any doubtful question in favor of the validity of the law. On full consideration, therefore, of this point now raised, I think the conclusion reached on the original hearing was correct, and that this court has the right, under this legislation, and on the option of the life tenant alone, who is sui juris, to terminate the holding of the entire proceeds of sale in court, and to direct the payment to her in gross of the sum which has been fixed as the present value of her interest.

The exceptions will be overruled, with costs, and a final decree be entered in accordance with the opinions.

(72 N. J. Eq. 588)

DIXON v. DIXON.

of enabling the court to obtain jurisdiction of the children.

4. SAME.

Where parents are living separately, the court may order their children kept within the state, or, if absent, brought within it.

5. SAME-MODIFICATION of Order.

Where the custody of children was awarded to the mother, who was living separate from the father, a modification of such order would not be made merely because the mother had taken the children to Maine, in the absence of proof that she intended to keep them there permanently and to prevent the father from visiting the children as provided by the decree.

Petition by William H. Dixon against Josephine T. Dixon for the modification of a judgment relating to the custody of certain children. Continued for further hearing.

R. V. Lindabury, for petitioner. Gilbert Collins, for defendant.

STEVENS, V. C. On June 1, 1905, William H. Dixon, the petitioner, filed his petition in this court, alleging that he and the defendant were married on January 30, 1901, in the city of New York, and that they lived together in that city until May 3, 1904, when his wife left him and went to live at her father's residence there; that they have two children, viz., William P., born March 19, 1902, and Barbara W., born April 30, 1903; that on June 8, 1904, the defendant took the children to Madison, in this state, to live with her in a house provided by her father, at which place she had resided ever since. The petition alleged the father's willingness to provide for her children, and stated that he had difficulty in obtaining access to them. The prayer was for a writ of habeas corpus, to the end that an order might be made

1907.)

1. DOMICILE-CUSTODY OF CHILDREN-DECREE

-MODIFICATION-JURISDICTION.

Where a decree awarded the custody of certain children to their mother, but authorized the father to visit them at specified intervals, a letter written to the father by the mother's father that the mother had moved from New York to Portland, in the absence of any showing that the mother had authorized such statement, was insufficient to show that the mother had changed her permanent residence from New Jersey to Maine.

2. HABEAS CORPUS--DECREE-MODIFICATION— CUSTODY OF CHILDREN.

Where, in a proceeding to determine the custody of certain children, the mother answered, claiming the custody of the children, and the court awarded the same to her, with the provision that the father should be permitted to visit them, and it was established in that proceeding that the mother and the children were residents of New Jersey, the court, having acquired jurisdiction in the first instance, was entitled to modify the previous decree, notwithstanding the removal of the mother and children to another state.

3. SAME STATUTORY PROCEEDING.

A petition for the custody of children as between parents living separately, authorized by P. L. p. 263, § 8, in which a writ of habeas corpus may issue, as provided by section 12, is not a common-law habeas corpus proceeding; such writ being merely ancillary for the purpose

the whole or a portion of the time, or for such other order with respect to their care and custody as should be just. The defendant answered, denying that her father was a resident of New York, and averring that he had for several years been a citizen of New Jersey, with a home at Madison, where he resided during the greater portion of each year. She denied that she and petitioner had lived in the city of New York up to May 3, 1904, and averred that they had lived together in Madison during the summer of 1901, and that in May, 1903, petitioner having gone away for his health, she and her children had gone to her father's house, in that town, and that in September, 1903, she and the petitioner, together with her children, after remaining a few days at her father's house in Madison, had taken possession of a neighboring house there, where they had continued to reside during the winter, and that she and her children had continued to live there ever since, except for a short interval. It will thus be seen that at the commencement of the proceeding and for two years prior thereto the defendant and her children had been residents of New Jersey. To the