Municipal Corporations, Newark, P. L. 1857 p. 167.
P. L. 1868 p. 1002.....
Paterson, P. L. 1871 p. 808.............. 38T
Staying Proceedings at Law.
1. Evidence newly discovered, relevant and material, which
appears not to have been undiscovered through the
appellants' laches or negligence, consisting of a letter
and also a written agreement in respondents' possession
during the trial at law, constitutes ground sufficient for
staying proceedings on the judgment obtained at law, and
for ordering a retrial. Cairo & Fulton R. R. Co. v. Titus, 397
See ESTOPPEL, 2-4.
1. Even if his mortgage be invalid, the mortgagee is, neverthe-
less, under the circumstances, entitled to subrogation to
the rights of the former mortgagee and the city, to pay
off whose encumbrances his money was lent. Homœo-
pathic Mut. Life Ins. Co. v. Marshall,
2. In adjusting the priorities of several encumbrancers on
lands of an insolvent corporation in the hands of the
receiver of this court,-Held, that banks which had
loaned money to such corporation on notes endorsed by
its directors, were entitled to be subrogated to the rights
of such directors, under a mortgage given to them by
the corporation to indemnify them for such endorse-
ments. Demott v. Stockton Paper Ware Manufacturing Co. 124
3. Where a payment is made by a stranger to a debtor, in the
expectation of being substituted in the place of the
creditor, he is entitled to subrogation. Tradesmen's Build-
ing &c. Association v. Thompson,
4. The complainant advanced money to a debtor to discharge
two mortgages on the debtor's lands, the first one for
$1,500 and the second for $500, and to receive in their
place a first mortgage for $2,200. The $1,500 mortgage
was so paid and discharged, but the second one, although
paid and cancelled of record, was at the time in the
hands of an innocent assignee, and, being cancelled
without his knowledge, was re-instated.-Held, that the
complainant was entitled by subrogation to the rights of
the $1,500 mortgage. Id.,
5. A second mortgagee paid certain taxes and assessments
imposed on the premises, after a sale to the city for their
non-payment, and took an assignment of the certificates
of sale, such taxes and assessments being, by the charter,
a lien prior to other encumbrances. On foreclosure of
the first mortgage,-Held, that he was entitled, by equit-
able subrogation, to the city's lien, and to re-imburse-
ment for whatever sums he had paid for legal and valid
claims of the city, and that he could obtain relief by
Fiacre v. Chapman,
463
1. Although a municipal charter did not expressly declare
that taxes on lands within the city limits should be para-
mount to any lien thereon, yet taxes assessed subse-
quently to the making and recording of a mortgage on
such lands, were held to be a prior lien, because such
lands were, by the charter, to be assessed at their full
and fair value; and mortgages thereon were not taxable
in the hands of residents of this state; and a mortgagee
or any person interested might redeem such premises
after a tax sale; and that, notwithstanding the charter
required the tax sale purchaser to give notice to the
owner, after such purchase, and contained no express
direction as to such notice being given to the mortgagee.
Paterson v. O'Neill,
2. An assessment for benefits is a tax, and may, in the discre-
tion of the legislature, be made a lien superior to all
prior estates and rights in the land. Howell v. Essex Co.
Road Board,
3. A statute which makes taxes a lien on land, and gives a
mortgagee a right to redeem, and to tack the money paid
in redemption to his mortgage debt, and provides that
his rights under his mortgage shall not be divested with-
out notice that the mortgaged premises have been sold
for taxes, sufficiently indicates the purpose of the law-
maker to make the tax lien paramount, to entitle it to
override all prior mortgages on the land. Id.,
See EMINENT DOMAIN, 3, 4; MORTGAGE, 20.
Tenant for Life.
See REMAINDER; WASTE.
See APPEAL, 2; MECHANICS LIEN, 3; PRACTICE, 2.
1. A testator gave his executors a power to sell any or all of
his lands, and to pay over the rents from the time of his
death until the time of such sale, after deducting the
charges thereon, to the persons designated by him. The
executors have in hand a considerable sum belonging to
B., one of such persons.-Held, that this constitutes an
active trust, within the exemption of the statute (Rev.
p. 120 3 88), and that, consequently, the fund cannot be
reached to satisfy a judgment creditor of B.
Force v.
Brown,
2. The evidence showed that Cornelius Vreeland, in consider-
ation of a legacy of $30,000 to him, promised the testator,
verbally, to give complainants $10,000 thereof; that
Vreeland, after testator's death, admitted the trust
orally, and, also, executed a written promise to that
effect, without any deceit or misrepresentation.-Held,
that specific performance of such promise would be
decreed, notwithstanding a subsequent retraction of the
written promise. Williams v. Vreeland,
3. A trust was created to provide a home for a wife and her
children; to raise a specified sum by a sale of certain
lands, and "to invest in good securities" and pay the
income of such sum to the cestuis que trust, with power to
convey the homestead and "to change the investments
at his (the trustee's) discretion from one good security to
another"; and providing that the trustee should "not
be liable or responsible for any other cause, matter or
thing except my own willful and intentional breaches of
the trust." The trustee sold part of the lands, taking
therefor second mortgages to secure the bonds given for
purchase-money, by the grantee, a married woman,
alleged to have been at that time responsible. The lands
sold consisted of town lots, and the trustee sold every
alternate lot. It also appeared that the trustee procured
no appraisement of the value of the premises mort-
gaged; did not ascertain for how much they rented, and
did not himself think they were worth double the encum-
brances thereon, and that the sales were made without
the direction or approval of the wife.-Held,
(1) That selling every alternate lot in such a tract,
with the intention of benefiting those remaining by the
subsequent improvements on those sold, was a fair exer-
cise of discretion.
(2) That the trustee was liable for the loss to the
estate by reason of his taking the second mortgages for
the lots sold, and that the clause above quoted in the
trust deed did not exonerate him; nor the fact that the
trustee, being in doubt as to the propriety of accepting
such securities, consulted counsel, who advised him that
such mortgages were proper investments (it appeared
that the trustee, who was himself a counsellor at law,
was not satisfied with the investments, but only intended
that they should be temporary, and had never been able
since then to convert them into "productive, absolute
securities "); nor the fact that the grantee and obligor,
when the bonds were given, was financially responsible.
(3) That the proper measure of indemnity is the value
of the property at the time of sale, with interest.
more v. Tuttle,
4. Equity will enfore a parol promise, made by a legatee to a
testator, to hold the legacy for the benefit of a third
person. Parol evidence is not competent to vary a will;
the ground upon which the trust is enforced is simply
that of fraud practiced by the party on whom the trust
is fastened. Vreeland v. Williams,
5. To maintain the bill, two facts must concur: First-that
the testator gave the legacy to the defendant, not for his
own benefit, but as a trustree for the complainant. Sec-
ondly-that the testator's intention was made known,
before his death, to the legatee, and the legacy was
accepted by him on this footing. Id.,
6. Any declaration of intention on the part of a testator, dif-
ferent from that expressed in the will, is incompetent as
evidence, unless it was communicated to the legatee,
assented to by him, and such assent acted upon by the
testator. Id.,
7. Where a testator bequeathed one-third of the residue of
his estate to his executors as trustees, in trust, to pay the
net income and interest thereof to his daughter, during
her natural life,-Held, that the daughter was entitled to
the interest which accrued from the date of the testa-
tor's death. Green v. Blackwell,
768
8. A. Hooley, a member of a firm, died, leaving in his will a
direction to his trustees to withdraw his interest from
the firm business as soon as practicable, and invest the
proceeds. The trustees, with a third person, formed a new
firm and kept the stock of the old firm in their business,
allowing the Hooley estate $53,000 for the interest of the
deceased. This sum was never paid to the estate and
invested. More than three years after the death of H.,
the trustees borrowed of Ross $7,100, to be used in the
business of the new firm for the purpose, as they allege,
of enabling them to pay to the Hooley estate the firm
debt of $53,000. As collateral security for such loan,
they assigned to Ross "a trust mortgage, which they held
as such trustees."-Held,
(1) That such assignment was a breach of trust, inas-
much as the proceeds therefrom were to be applied to
the aid of a business of which the trustees were partners.
(2) That the facts in the case show that Ross knew of
the purpose for which the money was borrowed, and that
he knew the facts which made its borrowing a breach of
trust; and hence, there should be a decree that he re-as-
sign the mortgage. Ross v. Fitzgerald,
See DISTRIBUTION, 1; MORTGAGE, 19; SAVINGS BANKS, 2; SOLICI-
TOR, 4.
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