ging and abusive (how, or when, she does not say); he was delinquent at meal times; he repeatedly pretended drunkenness on approaching home to make her unhappy; he locked himself in his room and told her he was going to take his life; they were frequently without means of support; they were behind in the payment of their bills; their desperate financial condition compelled them to move from one town to another; her husband's family insisted in a "brutal way" that she take employment at The Sign of the Hammer; her husband did not support her at all; she was obliged to earn her own living and contribute to his support; when they were first married, her husband came home early one afternoon and went skating and spent the evening, while she was at work; he repeated this upon two other occasions; he frequently went out in the evening and did not return until 2 o'clock in the morning, when he told her his experiences and acted as if he were demented. Things continued until they had an apparent reconciliation while living at Caldwell, when he told her that he had lost his love for her; the bills were piling up and unpaid, and his conduct with regard to drinking was getting worse; she became fearful for herself and for him, and because of this she made up her mind that she had better leave him. On two holidays he left her alone without explanation; he left her alone night after night, and she stood it as long as she could, and finally left

"because his drinking habits were getting worse, and he had told me he did not care about me, and I decided I had better leave him."

They did not see each other again to speak to until October of the following year, when she called him on the phone, and made an appointment with him, which he kept. She asked him whether he was willing to let bygones be bygones, to which he replied that he did not know what he was going to do about it, and asked her to meet him in New York. Between that time and the following New Year's they met a number of times in New York, went to theaters, and stayed overnight at hotels. She suggested that they resume cohabitation in a furnished room in that city, to which he agreed, saying it was the proper thing to do; but she says he wanted to do it, but did not want to do it as she did; he would not bind himself; he did not want to tell the family; he wanted to do it in an underhand way; he seemed anxious to start a home again, and looked up furnished rooms. Their plans did not materialize, and matters continued until, as the witness says, she made up her mind that it was not her husband's idea to make a home for her; that he just wanted her for one purpose, and that was all, and so she left him. She says it came over her by degrees that she should do this. Their last meeting was between December 25th and New Year's day of 1911, when they went to dinner and

theater. She says she concluded not to continue things in that way, and told her husband that she was not willing to go with him to a hotel in that manner, when he was unwilling to furnish a home. After trying to persuade her to change her mind, he ascorted her to the "Settlement House," where they bade each other good-night in a friendly way, and separated. She has not seen him since, nor has he sought communication with her, although they have lived in the same town within a few blocks of each other. I have purposely excerpted her story from the depositions, because every expression is essential to her case.

Her brother-in-law, Brown, the only witness called, testified that since 1911, he has seen the defendant at his place of business in New York, and on Decoration day, 1914, playing a tennis tournament, and that he was without physical disability; that during the last 2 or 3 years he has seen him in the town and at the club, and that their only conversation was courtesies of the day; although the defendant had opportunities, he never talked with the witness about his wife or inquired for her, or spoke to him of their situation, and he never sought the witness to bring the two together. He says he knows that the petitioner has practically supported herself since the marriage, and only from what she told him does he know of their financial difficulty.

Upon the re-reference the husband was called. He admitted that he had not lived with his wife since December of 1910; that during 2 years past he had not supported her, nor asked her to return to him, nor offered to provide her with a home; and on crossexamination by the master said:

"I suppose it is true I have lost my love for my wife, naturally. I suppose the desertion is intentional in a certain way, for a great many reasons. I do not propose to live with her."

He also admitted having taken her to theaters and hotels in New York, as the petitioner related, and that she had spoken to him about beginning a home again in a furnished room, and that he told her that he would not say anything to the family at that time as to what they were going to do.

[1-4] Now, the testimony of the petitioner far from shows a willful desertion of her by the defendant. She, in fact, deserted him. The facts upon which she bases her reasons for leaving him-intemperance, inattentions, and failure to support-were not such as to justify the separation on her part, amounting to a constructive desertion on the part of the husband. Intemperance was not. Foote v. Foote, 61 Atl. page 90; 14 Cyc. 611. In Palmer v. Palmer, 22 N. J. Eq. page 88, it was laid down by the chancellor that:

"There is no rule that makes want of sufficient support by a husband, or total want of support, a desertion of his wife. It is no cause for divorce, and this court cannot, by construction, convert it into a ground of divorce by calling it desertion." Skean v. Skean, 33 N. J. Eq.

[5-8] For such an affliction the wife has a remedy, under section 26 of the Divorce Act (Comp. St. p. 2038), for maintenance and support. Her evidence does not show an intent upon the part of the husband to desert her; quite to the contrary. His letter to her, after she left him in December, 1910, shows clearly his dissatisfaction with her course and a desire for her return. When she again deserted him in December, 1911, what was his mental attitude towards her? He was anxious and willing that they should live together as husband and wife; but she was not, because he was tardy in his preparation and disinclined to make the reunion public at that time and also because she had lost faith in his honesty of intention to provide a home and support her. He expostulated when she threatened to leave. From this situation it is impossible to deduct an intention upon his part to then desert her. Her testimony shows that he was oppositely minded. And, is there anything in the case to show that within the next two months he changed his mind, or that he did even after the commencement of this action? I fix 2 months, because the petition was filed in less than 2 years and 2 months from the alleged desertion. None, unless the testimony of the husband may be so interpreted. He was a competent witness in her behalf. Schaab v. Schaab, 66 N. J. Eq. page 334, 57 Atl. 1090. He is evidently indifferent as to the outcome of these proceedings, for he permitted the cause to go undefended, perhaps due to a willingness now that the marriage tie be severed. He was drafted to help out a desperate situation, and under the circumstances his testimony is to be regarded with suspicion, and carefully and jealously scrutinized before giving it credence. He says that he does not propose to live with his wife. In this he speaks of the then present and future. He was not asked when he had formed this intention, and it, of course, cannot be assumed to relate back to the date of the alleged desertion, for it clearly appears that he then wanted to live with her. What he

meant in stating that he supposed "the desertion is intentional in a certain way, for a great many reasons," he was not called upon to explain, and if he had, I surmise he would have qualified by saying that but for his wife's desertion of him he would not be living in a state of separation. And again, when was the intention to desert formed, if there was such an intention? If within 2

years of the filing of the petition then the cause had not ripened; if before the 2 years, the evidence does not establish it. The fact that the defendant, though living within a short distance of his wife, did not extend any effort to have her return to him, considering the manner in which she brought about the

an intent on his part to desert her from the beginning. This fact does not bring the case within the doctrine of Alward v. Alward, 65 N. J. Eq. page 28, 55 Atl. 996, Foote v. Foote, 71 N. J. Eq., page 273, 65 Atl. 205, and Thomas v. Thomas, 74 Atl. page 125, in which the facts justified the inference of ant intention to abandon. The petitioner's evidence does not make out a case of desertion within the meaning of the statute.

Furthermore, it is not corroborated. It has been laid down repeatedly that a divorce will not be granted upon the unsupported testimony of the petitioner. McShane v. MeShane, 45 N. J. Eq. page 341, 19 Atl. 465. Here, failure to support and the state of separation (and that is all the brother-in-law testified to) are not corroborating circumstances, as they were in the cases last cited, because they do not in themselves furnish an inference of intent to desert; and the depositions are barren of declarations or actions on the part of the defendant evincing an intention to do so. For aught that appears outside of the petitioner's testimony, she and her husband may be living apart by mutual acquiescence. I have searched the husband's testimony carefully, but can find nothing in it inconsistent with this hypothesis.

Besides this, the separation was not against the will of the wife. The husband's conduct may have inspired it, but it was the action of the petitioner that brought about the condition. She seems to have been content with the situation she created. McGean v. McGean, 63 N. J. Eq. page 285, 49 Atl. 1083. It may be added that there is no corroborating proof of obstinacy.

(84 N. J. Eq. 593) CRAIG et al. v. SMITH et al. (Court of Chancery of New Jersey. July 13, 1915.)

1. JUDICIAL SALES 50-UNPAID TAXES.

As to unpaid taxes, a purchaser of land at judicial sale can be protected by deduction from the purchase money.

[Ed. Note.-For other cases, see Judicial Sales,

Cent. Dig. §§ 90-94, 96; Dec. Dig. 50.] 2. CURTESY

OF.

5 CURTESY INITIATE-RIGHT

Until the birth of issue the husband of a woman owning land has no estate by the curtesy initiate.

[Ed. Note.-For other cases, see Curtesy, Cent. Dig. §§ 11-15; Dec. Dig. 5.] 3. CURTESY 11-DOWER 46-BAR-PARTITION-SALE OF LAND.

1910, p. 3910) § 44, providing that the Court of Under Partition Act of 1846 (3 Comp. St. Chancery shall have power to decree the sale of land for partition, the inchoate rights of dower of wives of tenants in common made parties bands of the tenants in common, who were also to the suit, as well as any rights of the husparties, are barred by a sale made under an order requiring the master to execute a convey

ren county as well as in Morris county. The answer does not renew the objections of defective title by reason of the inchoate estates of dower and curtesy initiate, or of unpaid taxes. These objections are, however, raised in the brief for the purchaser, as is also the additional objection that under the Act of 1906 (P. L. p. 269 [4 Comp. St. 4686]) § 35, the exception from the sale of the rights of the canal company and railroad company should have been included in the advertisements and notices as well as in the conditions.

[1] As to any unpaid taxes, the purchaser can be protected by a deduction from the purchase money, and under the law of 1906 this is then no ground for relief from his bid. [2] The objection as to the failure of the final decree to direct specially the sale of the inchoate estates in dower, or of the estates by the curtesy initiate, and of the advertisements and notices to specify these inchoate or initiate estates as sold, is not, in my opinion, well founded. All of the supposed holders of these estates were parties defendant to the suit, were duly brought into court, and decree pro confesso was duly taken against all of them in the interlocutory decree which directed a reference to a master to report as to the rights of all the parties. The master in settling the rights reported that the defendants who were wives of the tenants in common were entitled to inchoate estates in dower in the shares to which their husbands were respectively entitled, but did not report that the husbands of five of the tenants in common (and who were also defendants in the suit) were entitled to any interest in the lands. The evidence taken before the master shows nothing as to the birth of any children on any of these marriages, and therefore upon the record, which is all that the purchaser is concerned with, so far as the present object goes, none of them had apparently any interest in the lands. Doremus v. Paterson, 69 N. J. Eq. 188, 57 Atl. 548 (Stevens, V. C. 1904).

[3] The master's report was made at the time and place fixed by the reference to him, and, no objections having been made before or at that time, the report was confirmed by the final decree. The final decree also directed a sale of the lands under the twentysixth section of the Partition Act of 1846 (Rev. St. p. 109), which is continued in the forty-fourth section of the Partition Act of 1898 (P. L. 660 [3 Comp. St. p. 3910]). This act of 1846 provides that:

"The Court of Chancery shall have power upon bill filed in that court for the partition of real estate, to decree the sale thereof."

The special master making the sale was further directed to report the sale for confirmation and upon confirmation to execute sufficient conveyance to the purchaser for the said real estate upon their complying with the conditions of sale, and the decree

"That such conveyance duly executed be valid and effectual forever and operate as an effectual bar, both at law and in equity, against the said parties, complainant and defendant, and all persons claiming by, from, or under them, or any of them."

This clause in the decree, which declares the effect of the conveyance as a bar, is, I take it, only an express declaration of an effect which, without any such declaration, impliedly and necessarily results from the decree for sale, and a conveyance thereunder, and has this result by reason of the express statutory power of the court to direct a sale, upon a bill for partition. My present view therefore is that a deed from the master as directed by this decree for sale would bar all parties to the suit who were brought into court and were subject to decree.

[4, 5] As to the objection that the master's failure to advertise and notice the sale in Warren county, I conclude this is fatal to an application to require the purchaser to receive a deed tendered under the present confirmation of sale. The master in making this sale was exercising a purely statutory power to pass the title of owners who do not themselves personally join either in the condition or agreements of sale, or in the conveyances of their title. The title depends therefore strictly upon the master's execution of the power as directed. In Osborne v. Tunis, 25 N. J. Law, 633, 662 (Green, Ch., Err. & App. 1856), it was said, "The execu tion of a power to sell lands by public officers must be in strict pursuance of the power, or no title is conveyed," and a deed was excluded because proof of advertisement was not made. The foundation of the purchaser's title in this cause is the public notice and advertisement in the places required by the statute.

An objection to the sale based on the mas ter's failure to comply with the statutory directions for advertising or notice was valid on general principles, and before the statute of 1906 a purchaser was not required to complete such sale. Ruddersow v. Dudley, 41 N. J. Eq. 611, 7 Atl. 477 (Err. & App. 1886). The statute of 1906 was intended to give the purchaser the benefit of objecting to those defects of title in the lands existing at the time of the sale, as to which he previously bought at his own risk.

[6] As part of the land was admittedly in Warren county, and no advertisements or notices were made in this county, the sale prima facie, at least, on the record must appear to be a defective execution of the power, and not to pass title. And to complete proof of his title under a deed given upon this order of confirmation, the purchaser, if he relied on this deed, and it were then admitted or were proved, as it certainly could be, that a portion of the land was located in Warren county, certainly could not sustain this deed as muniment of his title, without the further proof that the land in Warren