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Cooper, 21 N. J. Eq. 576; Turner v. Hart, 71 Mich. 128, 38 N. W. 890, 15 Am. St. Rep. 243.

Applying these principles to the circumstances presented by the case before us, clearly an injunction should issue. The findings show an injury not only from the essential nature of which, but also from its continuous character, the legal remedy is inadequate one which cannot be prevented otherwise, than by an injunction.

Decree affirmed, and cause remanded, with mandate.

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1. ESCROWS-CONDITIONS-PERFORMANCE.

Where a grantor deposited a deed in escrow for delivery to the grantee, he was competent to annex such conditions to its delivery as he saw fit, and the fact that in doing so he violated the terms of his contract does not give the deed any force which it would not otherwise have, and hence title could not pass by it without a compliance with the conditions of the deposit.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Escrows, §§ 8, 17.]

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A contract by which defendant agreed to deposit a deed conveying his farm in escrow for delivery to the grantee, on the payment of a certain sum, was not objectionable as uncertain, though it contained no specified time in which the condition of the escrow should be performed, since by implication performance must be within a reasonable time.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 19, Escrows, § 11.] 4. SAME.

Under these conditions, where it was found that a reasonable time had not elapsed on the day named for the withdrawal of the deed from the depositary, the conveyance of the property to another the day before was within the time the grantee by his contract had a right to perform, and, unless the rights of a bona fide purchaser intervene, equity requires that the grantee have a reasonable further time in which to perform the condition and receive a deed. 5. VENDOR AND PURCHASER-CONVEYANCE BY VENDOR TO THIRD PARTY-NOTICE-EFFECT,

Where a purchaser of land knew that his vendor had deposited a deed conveying the land to another in escrow for delivery to the grantee, on his compliance with certain conditions, and was put upon inquiry by the existence of an order restraining the depositary from redelivering the deed to the vendor, he stands in the same equity as his vendor, and will be compelled to perform the contract with the original grantee to the same extent as the vendor would have been liable to perform. 6. SPECIFIC PERFORMANCE -SUFFICIENCY.

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- RELIEF BILL

Where a bill praying specific performance of a contract to convey land does not show the orator ready and willing, nor that he offers to

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WITHDRAWING ESCROW.

Where, in a suit to compel specific performance of a contract, whereby defendant S. agreed to deposit a deed of his farm in escrow with a bank, to be delivered to the orator on the payment of a certain sum by him, where it was shown that S. attempted to withdraw the deed from the bank before a reasonable time had elapsed for the payment of the money by the orator, and had conveyed the land to another, it was proper to issue a temporary injunction holding the deed and the title to the property in statu quo.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, §§ 86-90, 303-306.]

Appeal in Chancery, Chittenden County; Willard W. Miles, Chancellor.

Bill by John S. Wilkins against Samuel Somerville and others. From a decree dismissing the bill, the orator appeals. Reversed and remanded, with mandate. Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

H. S. Peck, for appellant. M. M. Gordon and Geo. W. Wing, for appellees.

WATSON, J. On January 16, 1902, a contract was made between the orator and the defendant Samuel Somerville, by which it was agreed that the orator should pay the sum of $6,000 for that part of Somerville's farm lying in Duxbury, containing his homestead, and that the deed thereof, when made, should be deposited with the Capital Savings Bank & Trust Company, in Montpelier, in escrow until that sum should be paid. The farm was believed by both to contain valuable veins of asbestos and talc, and this they had in view in their negotiations. On the same day a warranty deed of the property was duly executed by Samuel and his wife, the defendant Eliza M. Somerville, to the orator, and was deposited by the direction of Samuel with the bank in escrow; but, instead of the condition being pursuant to his agreement with the orator, he directed the depositary to hold the deed until $6,000 should be deposited to his credit, or until called for by him or his attorney after 30 days from date. The orator neither consented to, nor had any knowledge of, any change in the condition; nor was he afterwards informed of it. Indeed, never thereafter did Samuel make reference to the time the deed should remain in the custody of the bank, until September 19th, when he wrote the orator that after 30 days he should think best to take it therefrom. Again, October 6th, he in like manner notified the orator that the date for withdrawing the deed was October 20th, advising him that what he did must be done before then. In answer to

each of these communications, the orator protested against its withdrawal. Later Samuel extended the date to October 30th, and the depositary notified the orator that. unless payment be made by that time, the deed would be returned to the vendor. Thereupon the orator protested to the latter that under their agreement he had no right to recall the deed. On the day before the bank was thus to return the deed, an order was issued restraining it from so doing. On the same day, Samuel and wife by their deed of warranty conveyed the land, together with land in Fayston, to the defendant Mark Mears, who in making the purchase was cooperating with defendants George D. Mears, A. W. Slocum, and Mathew M. Gordon; it being understood and agreed between them that Mark Mears should furnish the money to pay for the property, hold the title, and transfer the same to a company to be formed by them. In this purchase the consideration to be paid was $6,000, of which $2,500 was paid by check, with an agreement to pay the balance in 60 days. The deed to Mears was sent by him to the defendant Eber Huntley, town clerk of Duxbury, for record. Soon thereafter this suit was commenced, with a temporary injunction holding the deed and the title to the property in statu quo.

The vendor, when depositing the deed with the bank, undoubtedly was competent to annex such conditions to its delivery to the orator as he saw fit, even to the extent of retaining the right to withdraw it from the custody of the depositary at any time, or after a specified time. The fact that in. so doing he violated the terms of his contract does not change the situation in this respect, nor give the deed any force which it would not otherwise have. Stanton v. Miller, 58 N. Y. 192. No title could pass by it without a compliance with the conditions of the deposit.

It is clear that the orator cannot have adequate remedy by an action at law. In view of the conveyance of the property to a subsequent purchaser, the question is: What relief will be granted in a court of equity? The contract is in its nature and incidents entirely unobjectionable. True, it contained no specified time in which the condition of the escrow should be performed; yet there was no uncertainty in this respect, since by implication performance must be within a reasonable time. Ordway v. Farrow, 79 Vt. 192, 64 Atl. 1116. It is found that such reasonable time had not elapsed October 30, 1902, the day finally named by the vendor for the withdrawal of the deed from the bank. Hence the conveyance of the property to Mears the day before was within the time in which the orator by his contract had a right to perform. Yet by that conveyance the vendor not only disabled himself from carrying out his prior contract, but he prevented its subsequent performance by the orator also. In these circumstances, unless

the rights of bona fide purchasers without notice intervene, equity requires that the orator be placed as nearly as possible in the same situation as the vendor agreed that he should be in-that he have a reasonable further time in which to perform the condition and receive a deed of conveyance of the property according to the terms of his contract. See Battell v. Matot, 58 Vt. 271, 5 Atl. 479; Ordway v. Farrow, before cited.

But the subsequent purchaser, Mears, was not without notice. Before he took his deed he knew all concerning the deed to the orator, and was put on inquiry as to the restraining order against the bank, issued the same day. Hence Mears, standing on the same equity as his vendor, will be compelled to perform the contract with the orator by a conveyance of the land in the same manner and to the same extent as the vendor would have been liable to do, had he not transferred the legal title. 1 Story, Eq. Jur. §§ 396, 784; Taylor v. Stibbert, 2 Ves. Jr. 438; Potter v. Sanders, 6 Hare, 1; Champion v. Brown, 6 Johns. Ch. 398; Ten Eick v. Simpson, 1 Sandf. Ch. 244; Haughwout v. Murphy, 22 N. J. Eq. 531. This doctrine rests upon the general principle in equity that, from the time of a contract for the sale of land, the vendor, as to the land, is considered a trustee for the purchaser, and the vendee, as to the purchase money, a trustee for the vendor; and every subsequent purchaser from either, with notice, is subject to the same equities as would be the party from whom he purchased. Story, Eq. Jur. § 789; Taylor v. Stibbert, 2 Ves. Jr. 439; Ten Eick v. Simpson, 1 Sandf. Ch. 244.

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The prayer of general relief is sufficient. It is said, in substance, however, that the bill does not show the orator ready and willing, nor that he offers, to perform; but, since a case for specific performance has been made out in other respects, a court of equity will hesitate to deny such relief without an opportunity to the orator to move for leave to amend his bill. In the event of such relief being granted, we do not understand that damages are here sought by the orator in addition thereto. Whether, in case he does not avail himself of specific performance, any claim he may have for damages or for money expended may be here enforced by way of a lien on the property, or otherwise, is a question on which we give no intimation.

It sufficiently appears, without further discussion, that, as far as the temporary injunction relates to the land in question, it was properly issued to protect the orator's equitable rights in the premises, and, with such modifications as may be necessary to the carrying out of the decree, it should be made perpetual, provided that, if the orator fails to perform within the time limited, then the injunction should be dissolved for his failure to perfect his title under the decree. To the extent that the injunction relates to

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Assessments for benefits from the construction of sewers in cities must conform to the act of February 19, 1895 (P. L. 1895, p. 95). [Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1109.] 2. SAME-VALIDITY.

The total assessable cost of a sewer system was more than $100,000. The total assessment for benefits was $5 less, and was levied upon some of the abutting owners to the exclusion of others and to the exclusion of owners within the sewerage area, but not along the line of the sewer. Held, that the assessment was invalid. (Syllabus by the Court.)

Certiorari by Thomas S. Simmons against the mayor and common council of the city of Millville to review an assessment for sewer benefits. Assessment set aside.

Argued February term, 1907, before GARRISON, SWAYZE, and TRENCHARD, JJ. French & Richards, for prosecutor. Louis H. Miller, for defendant.

SWAYZE, J. The prosecutor seeks to set aside an assessment of benefits for sewers in the city of Millville. The proceedings were had under the act of April 7, 1890 (P. L. 1890, p. 192). Only lands fronting on the line of the sewer, and not all of such lands, were assessed. Churches, factories, and railroad property were altogether omitted, and the aggregate frontage which thus escaped assessment was large. The report of the commissioners shows that they did not assess in respect to the cost of the work so far as it extended beyond the line of the whole property assessed, but assessed the cost thereof upon the city at large. The total cost of the sewers was $111,075.24; the amount assessed upon the city at large $10,531.05. Of the balance $100,544.19, all but $5 was assessed upon abutting property owners.

The act requires a just and equitable assessment of the cost upon all the owners of lands fronting on the improvement which are peculiarly benefited thereby, in proportion as nearly as may be to the advantage each shall be deemed to acquire. Gen. St. p. 625, § 804. We cannot doubt that both churches and factories, and perhaps the rail

road, are benefited in their use, if not in the market value of the properties, by the construction of the sewers. Paterson and Hudson River Railroad Co. v. Passaic, 54 N. J. Law, 340, 23 Atl. 945; Erie Railroad v. Paterson, 72 N. J. Law, 83, 85, 59 Atl. 1031.

The suggestion that some of these properties are not benefited, because they already have private sewers discharging into the Maurice river, cannot be entertained, especially in view of the recent legislation having in view the protection of rivers from pollution.

Since substantially the whole cost, as far as the statute permitted its assessment at all, was assessed upon certain properties including the prosecutor's, to the exclusion of others, the result is injurious to him, and cannot be sustained. Schlapfer v. Town of Union, 53 N. J. Law, 67, 20 Atl. 894.

There is another error in the proceedings. By the act of February 19, 1895 (P. L. 1895, p. 95; Gen. St. p. 2138), it is provided that, where sewers may be constructed forming part of a general system of sewerage, it shall and may be lawful to assess benefits, not only upon the land fronting on the line of the sewer, but also upon all lands throughout the entire sewerage area in the municipality. The language of the act is in form permissive, but our courts have held that a similar statute of 1887 was mandatory. Central Land Co. v. Bayonne, 56 N. J. Law, 297, 28 Atl. 713. The constitutionality of the act of 1895 was sustained in Vreeland v. Bayonne, 60 N. J. Law, 168, 37 Atl. 737. Since that decision the practice seems to have been to proceed under that act. Brown v. Town of Union, 62 N. J. Law, 142, 40 Atl. 632; Seamen v. Camden, 66 N. J. Law, 516, 49 Atl. 977; Camp v. Neuscheler, 67 N. J. Law, 21, 50 Atl. 597; Butler v. Montclair, 67 N. J. Law, 426, 51 Atl. 494. Brown v. Town of Union was affirmed in 65 N. J. Law, 601, 48 Atl. 562, and the court said: "The manifest intent of that act (of February 19, 1895) is that, whenever sewers are constructed in any municipality at public expense, and special benefit accrues therefrom to private lands within the corporate limits, an assessment for the benefit shall be imposed on such lands, and the act prescribes constitutional regulations for the levying of such an assessment."

Since the act of 1895 is constitutional, general, and mandatory, sewer assessments in all cities must be made in conformity with its provisions, as was said of the older act in Central Land Co. v. Bayonne, unless it has been repealed or is inapplicable to the present case.

It is argued that it is repealed by the act of March 14, 1895 (P. L. 1895. p. 298; Gen. St. p. 631, § 842), and the act of 1906 (P. L. 1906, p. 414). This contention cannot prevail. The only effect of the act of March 14, 1895, is to enable a city to provide by ordinance for the appointment of commissioners

of assessment, instead of having them appointed by the circuit court. The only effects of the act of 1906 are to provide for the appointment of a special officer to collect assessments, to enable the common council to regulate the rate of interest, and to extend the time for the commissioners to report. None of these amendments conflict with the provisions of the act of February 19, 1895, that require the assessment for benefits to be coextensive with the drainage area. An assessment may be levied under the act of 1890, and yet in accordance with the rules prescribed in the act of February 19, 1895. Camp v. Neuscheler, 67 N. J. Law, 21, 50 Atl. 597. Even the provision of section 22, which makes the assessment a lien from the confirmation of the report, is not necessarily inconsistent with the provision of the act of 1895, which postpones the collectibility of the assessment. It has been held that, where the statute so provides, the lien may attach at the time of making the improvement, although, of course, the amount could not then be ascertained. Hartshorn v. Cleveland, 52 N. J. Law, 473, 19 Atl. 974, affirmed 54 N. J. Law, 391, 25 Atl. 963. That there is no necessary connection between the time when the lien attaches and the time when the amount is collectible is shown by the common provision making the assessment payable in installments. Moreover, both sections, 22 and 24, were in the original act of 1890, and the amendments of March 14, 1895, and of 1906 are to be read into that act. The mere amendment of these sections does not indicate a legislative intent to repeal the general scheme established by the act of February 19, 1895.

The act of 1903 (P. L. 1903, p. 156) relates only to the special case where an assessment for a lateral sewer has been confirmed prior to the confirmation of the assessment for the trunk sewer or the intermediate connecting sewer. The act of 1904 (P. L. 1904, p. 88) applies only to extensions of sewers and sewer systems. Neither act has any bearing upon the present case.

It is further argued that the act of February 19, 1895. applies only to the main outlet sewer, and that, since the cost of that sewer was assessed upon the city at large, the prosecutor cannot complain on that ground. This argument is based upon a misreading of the act of 1895. That act is not limited to the main outlet sewer, but extends to all main, trunk, or intercepting sewers, and the provision for assessment upon lands fronting on the line thereof makes it clear that something more than a mere outlet sewer was intended. In every system of sewerage, some sewers must be main or trunk sewers carrying not only the sewage of buildings along the immediate line, but receiving also the discharge of other sewers. The main or trunk sewers are necessarily larger and more expensive, and the object of the act of 1895 was to distribute the addi

tional expense among those who profited by it. It would be manifestly unjust to charge property along the line of a main or trunk sewer with the additional expense caused by the necessity of carrying the sewage of other property, and it would be almost as clear an injustice to put the burden of this expense upon the general tax levy in ease of the property of which the existing needs made necessary, or the probable future needs made advisable, the additional expense.

We think the assessment in this case was not in accordance with the statutory provisions, and it must therefore be set aside, with costs.

Since the property is subject to assessment for the sewers, it is the duty of the court, under the act of 1881 (Gen. St. p. 3404, § 547), to make a proper assessment. In order that the city may have an opportunity to apply to the court for the purpose, judgment must not be entered. except upon two days' notice to the city authorities.

(75 N. J. L. 25) MUNDY v. BOARD OF WATER COM'RS OF PERTH AMBOY. (Supreme Court of New Jersey. June 10, 1907.) MUNICIPAL CORPORATIONS MUNICIPAL BOARDS PROCEEDINGS-REVIEW BY COURTS. If a municipal board on whom powers of condemnation have been conferred by the Legislature resolves to acquire land by purchase at a price greatly in excess of its market value, such resolution will be set aside as unreasonable and improvident; the power of eminent domain having been conferred to meet just such junctures.

[Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 623.] (Syllabus by the Court.)

Certiorari by John L. Mundy to the board of water commissioners of Perth Amboy to review a resolution. Resolution set aside. Argued February term, 1907, before GARRISON, SWAYZE, and TRENCHARD, JJ.

Adrian Lyon, for prosecutor. Charles C. Hommann and Willard P. Voorhees, for water commissioners. George S. Silzer, for defendants Fountain.

GARRISON, J. The resolution adopted by the board of water commissioners of the city of Perth Amboy for the purchase of 32 acres of land at Runyon pumping station fot the sum of $15,500 should be set aside.

The testimony shows that from recent sales, and even from a recent purchase of substantially similar land by this board, it should reasonably have been apprehended that the fair market value of the tract of 32% acres would not exceed $1,000.

The board has had conferred upon it by the Legislature the power of condemnation to meet just such a situation as this. Under these circumstances the failure of the board to have recourse to proceedings in condemnation in view of the excessive purchase price

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CONTINENTAL COMPRESSED AIR CO. v. FRANKLYN.

(Court of Chancery of New Jersey. April 19, 1907.)

1. INJUNCTION-SUBJECTS OF RELIEF-ACTION AT LAW-ADEQUATE LEGAL REMEDY.

A garnishee by a statutory plea denying indebtedness to the defendant in attachment being entitled to raise the question at law whether the defendant in attachment could lawfully exercise an option in a contract to declare the contract void, and thus discharge the garnishee's obligation to make payment under the contract, the garnishee was not entitled to maintain a bill to enjoin the proceedings at law in order to obtain a determination of such question in equity.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 27, Injunction, §§ 15, 24.]

2. SAME-EQUITY — EXERCISE OF POWERS TIME.

The remedial powers of a court of equity to enforce by injunction equitable rights which cannot be enforced at law may be exercised after, as well as before, judgment at law.

Bill by the Continental Compressed Air Company against Claude S. Franklyn for an injunction to restrain an action at law. Denied.

Defendant issued an attachment against the Taylor Hydraulic Air Compressed Company, Limited, and served notice of garnishment on complainant. The defendant in attachment appeared, and at trial judgment was rendered against it for the amount of the debt for which the attachment was issued. Action by scire facias is now pending by defendant against complainant for the recovery of an indebtedness alleged to have been due from complainant to the defendant in attachment at the time of the garnishment. The bill now filed by complainant seeks to restrain the pending action. The demand for equitable relief is based upon the claim that the statutory plea which complainant is required to file in the pending action at law is insufficient to fully protect its rights. The bill alleges that the supposed debt which was garnished was money then due from complainant to the defendant in attachment under a certain written contract, in which contract the right was given to the defendant in attachment to exercise the option, in the event of a default of payment, to declare the contract void and return certain moneys already paid, and that such option was exercised by the defendant in attachment after the attachment was issued and the garnishinent made.

John Meirs, for complainant. Harvey F. Carr, for defendant.

LEAMING, V. C. (after stating the facts). I am unable to recognize equitable jurisdic66 A.-57

tion in this cause. Where a court of law can do as full justice to the parties and to the matter in dispute as can be done in equity, this court will not stay the proceedings at law. The suggestion of equitable jurisdiction in this cause is based upon the claim that the statutory plea of complainant as garnishee, to the effect that it is not indebted to the defendant in attachment, is inadequate to enable complainant to disclose and avail itself of the conditions stated in the bill. It seems manifest that there can be no foundation for that claim. That statutory plea is treated by the courts as substantially a general issue and as sufficient to enable the court to fully determine the rights of the parties. Welsh

v. Blackwell, 15 N. J. Law, 55, 56. With that breadth given to the statutory issue at law, it necessarily follows that, in determining whether the defendant in attachment could lawfully exercise the option to declare the contract void and thus discharge complainant's obligation as garnishee to make the payments named in the contract, the law court will be controlled by the same principles which would control this court in the determination of the same question.

While I am entirely clear that complainant has no rights which may not be fully protected in the pending action at law, it may not be inappropriate to add that, should it transpire that equitable rights do exist which the law courts are unable to enforce by reason of limitations incident to their procedure or rules of action, the remedial powers of this court may be extended to such conditions as well after as before judgment. The injunction now sought will be denied.

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An owner of a vehicle is not liable for an injury caused by the negligent driving of a borrower, if it was not used at the time in the owner's business.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, § 140.]

2. MASTER AND SERVANT-TORTS OF SERVANT -LIABILITY OF MASTER.

A master is ordinarily liable to answer in a civil suit for the tortious act of his servant, if the act be done in the course of his employment in his master's service. Whether so done or not must depend upon the facts of each particular case.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1226-1228.] (Syllabus by the Court.)

Action by Patrick Doran against Hugo A. Thomsen. Demurrer to declaration sustain. ed as to the first and third counts and overruled as to the second count.

Argued November term, 1906, before HEN. DRICKSON, SWAYZE, and TRENCHARD,

JJ.

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