1 Robbins. Wirsching v. Grand Lodge of F. & A. M. of N. J.

property as might be sued for when he entered the home, and did not transfer the legacy; and so the complainant was misinformed, not merely as to the legal effect of the paper, but as to its contents. This was a mistake of fact, just as much as it was in Loss v. Obry, supra, where the grantor's scrivener inserted a description of an entire tract, instead of the part of the tract which it was intended to convey; or just as much so as it was in Waldron v. Letson, supra, where the scrivener failed to include in the mortgage all the land that it was intended to encumber. Under the facts as they appear in the case at bar, the minds of the parties cannot be said to have met. The remedy is therefore rescission, and this relief can be given without any injustice to the defendant, for it took the complainant into its home on the supposition that he had nothing; that he was a proper object of its care, because he had been for thirty years a Mason in good standing, and not because he was able to pay for or contribute toward his board and lodging.

Fivey v. Pennsylvania Railroad Co., 67 N. J. Law (38 Vr.) 627, was relied upon to defeat this action. That was a suit at law, in which the agreement set up in bar of the action was attacked for fraud. The court found that there was no fraud. The case is manifestly inapplicable.

I do not think it necessary to decide whether Jansen was the agent of the lodge or the agent of complainant. If the latter, then some of the evidence of conversations admitted in evidence on the assumption that proof that Jansen was defendant's agent would be given, may not have been competent. On the assumption that Jansen was complainant's agent and not defendant's, and without the aid of the doubtful evidence, the complainant has established his title to relief.

In his bill complainant offers to pay a reasonable sum for board and lodging while in the home. This will put the defendant in even a better position than it supposed it occupied at the time it received him.

The bill charges fraud. Of this there is no evidence. I think that under the circumstances each party should pay his or its

Cook v. Weigley.

Mr. William D. Wolfskeil, for the appellant.

Mr. Samuel Schleimer, for the respondent.

PER CURIAM.

67 Eq.

The decree in the above cause is affirmed, for the reasons given by Vice-Chancellor Stevens in the court of chancery.

For affirmance-THE CHIEF-JUSTICE, DIXON, FORT, PITNEY, SWAYZE, VREDENBURGH-6.

For reversal-GARRISON, VROOM, GREEN, GRAY-4.

EMMA W. Cоок, executrix, &c., respondent,

υ.

WILLIAM W. WEIGLEY et al., appellants.

[Submitted July 12th, 1904. Decided December 9th, 1904.]

Where a conveyance of mortgaged property contained no covenants of title whatsoever, and at the time of making the mortgage for a part of the price the parties had knowledge that the state claimed that the mortgagee's title was defective, a suit to foreclose the mortgage should not be stayed until the conclusion of a pending action by the state claiming an outstanding title in a part of the mortgaged premises.

On appeal from a decree of the court of chancery advised by Vice-Chancellor Reed, who filed the following conclusions:

This is a suit to foreclose a mortgage upon property known as Oyster island and Robbins reef, lying in New York harbor, in the county of Hudson. It is admitted that the mortgage was duly executed, and that by its terms the amount of the principal sum, with interest, is now due.

The defences interposed are-first, that the mortgage was given in pursuance of a scheme in which all the parties were concerned, the purpose of which was to sell the mortgaged property as a speculative enterprise and to pay the mortgage out of the moneys realized when the sale occurred and not until then; second, that an action is pending by the State of New Jersey, claiming an outstanding title in a part of the mortgaged premises, and that this being a purchase-money mortgage, this court should stay this suit until the other suit is determined; third, that an agreement was entered into that no proceeding should be taken to foreclose the mortgage until the suit of the state was ended; and fourth, misrepresentations as to the title to the property mortgaged and failure of consideration.

In support of the first of these defences the defendant produced in evidence a history of the dealings of the parties respecting the mortgaged property. Robbins reef and Oyster island appear to have been the subject of discussion between Mr. William M. Force, the registrar of the board of proprietors, and Professor George Cook as early as 1878. The point discussed was whether these islands were upland and so were the property of the board of proprietors. In 1880 they were surveyed and a return made to Professor Cook. In 1887 Professor Cook entered into an arrangement with one Ezra A. Hayt, by which the latter was to secure a sale of the property. By an agreement, dated August 31st, 1887, Hayt was to have an option to purchase the said property for the price of $100,000, the option to end October 1st, 1887. By another agreement of the same date between the same parties, Professor Cook agreed to pay Hayt a commission on said sale of fifty per cent. or $50,000 of the consideration money. No sale having been made within the time limited, another agreement was entered into between Professor Cook and E. A. Hayt on May 1st, 1888, similar in terms to the preceding agreement of August 31st, 1887, excepting that the price was to be $250,000. By another agreement of the same date, Hayt was to have fifty per cent. or $125,000 commission. These agreements were extended to September 25th, 1889.

By an agreement of June 24th, 1889, the preceding agreements were extended to September 15th, 1890, the consideration of which extension was the sum of $10,000, to be paid by Hayt on or before September 15th, 1889, which said $10,000 was to be credited as part of the purchase-money. Similar agreements were entered into between the board of proprietors and Mr. Hayt.

All this time Hayt had been trying to effect a sale of the islands and had engaged the services of Colonel Weigley, the defendant, to assist in making a sale. A formidable obstacle in the way of any sale was the fact that the board of proprietors, claiming that the location in favor of Professor Cook was void, had made a new location in favor of one Charles E. Noble. The parties had also projected and incorporoated a railroad, which was to run from the main land to the island. On September 24th, 1890, Colonel Weigley conveyed ten acres of Oyster island to the New Jersey Terminal Railroad Company. The State of New Jersey raised another obstacle in the way of selling the property by asserting that the land sold to the railroad belonged to the state previous to the execution of the deed to Weigley, viz., in February, 1889, who later had an interview with Hayt, who broached to him a proposition for the sale of the property to the Pennsylvania Railroad Company. On March 22d, 1889, Mr. Hayt and Colonel Weigley entered into an agreement, fixing the commissions which Colonel Weigley should receive for his services in making the sale. On August 14th, 1889, Mr. Hayt wrote to Colonel Weigley concerning a prospective sale to the owners of the Inman line of steamers, and tells Weigley that he (Hayt) had arranged to have deeds made and deposited with a trust company, to be delivered on payment to the trust company of a certain sum of money. It appears that Mr. Jacob Weart, who seems to have been the New Jersey counsel for all the parties, had advised the sale of the property to someone and the execution of a purchase-money mortgage back to the vendors, the Cooks. Such a deed, under date of September 9th, 1889, was prepared on September 13th, 1889, and an agreement was signed by Professor Cook and Colonel Weigley, reciting this deed and declaring that the intent of the

parties was that the deed should be delivered to Weigley or to his assignee, provided he pay, or cause to be paid, to the said trust company, for the use of said Cook, the sum of $10,000 on or before September 29th, 1889, and the sum of $90,000 on or before September 15th, 1890, and in default of said payments the deed should be returned to the Cooks.

On September 15th, 1890, Mary H. Cook, individually and as executrix of George H. Cook, he having died, executed a deed for the two tracts to William W. Weigley.

On September 25th, Colonel Weigley wrote to the American Loan and Trust Company, enclosing $5,000 in cash and a note, made by Appleton to the order of Hayt. Mr. Weigley stated in this letter that the $5,000 in cash was for the Cooks, and that Hayt, who, under the agreement between him and Professor Cook, of May 1st, 1888, was entitled to one-half of the consideration money obtained on said sale, had agreed to accept the note of Daniel S. Appleton and authorized the company to deliver the note to Mr. Hayt, and to place the cash to the credit of Professor Cook's representatives.

On October 30th, 1889, Mr. Hayt wrote to Mr. Weigley that the State of New Jersey intended to set up a claim to Oyster island through the attorney-general, and proposed a plan by which the state and Mr. Hayt, with the consent of the other shareholders, could improve the flats.

On December 22d, 1903, Colonel Weigley executed a declaration of trust, in which he recited the execution of the deed from the Cooks to himself, the execution of his deed to the New Jersey Terminal Railway Company, and the execution of a deed by it to the Atlantic Terminal Railway, the execution of a bond and mortgage back to him by the said company to secure $1,500,000; that he (Weigley) had previously executed several declarations of trust, and then proceeded to declare that he held the title to said property and to the mortgage upon the following trusts: three-eighths part for the benefit of the executors of Daniel S. Appleton, three-eighths part for the use of Hayt, and two-eighths for himself; he reserved a right to sell the property and mortgage, while Appleton held a beneficial interest in it at a price to be mutually agreed upon by the parties in interest;