Brown v. Brown. friend who would accomplish that result; that she asked him if it were so; that he denied it and said that if he ever wanted a divorce he would let her know first before anyone else. And here it is worth while to refer again to what Cane, Jr., swears to on the subject of learning from Miss Meehan as early as the 1st of August that there was trouble between Brown and his wife, and of his communicating that information to Mrs. Brown. Mrs. Brown must have known at that time that the only person with whom she was liable to be charged with undue intimacy was young Cane; and she also knew the probability that Miss McCabe would report to Mr. Brown all that she had observed. When she returned from Red Bank there was nothing to intimate any change in her husband's feelings. She swears that his coldness increased, and there was nothing in his conduct from which she had a right to conclude that he was consenting to any improper intimacy with Cane, or even willfully shutting his eyes to it, and maintaining a voluntary position of blissful ignorance. Looking at this state of affairs, I am unable to see how the permitting of Cane to accompany her to a theatre and speaking of him as her best man can be considered as a license from Brown to his wife to yield her person to Cane, or even a connivance at the act. All that Brown at that time knew upon which to found a charge against his wife was what Mr. F. W. Cane had told him, which that gentleman declares was nothing specific, and what he had probably learned from the witness McCabe. Brown had no proof at that time of the extent to which his wife had compromised herself with Cane. But what he learned from F. W. Cane and McCabe was quite sufficient to excite his suspicion. There is, as we have seen, not the least evidence that Brown, after his wife's return from Red Bank, employed or encouraged. the house servants to watch Mrs. Brown and Cane, or that he learned from them what they had observed, until after the suit was commenced. The indications are that he did not suppose that the parties would indulge their guilty passions in his own house. Brown v. Brown. His first employment of a detective was about the 5th of October. We may presume that he learned through his solicitor the result of Coyne's observations on October 15th, and we may fairly infer that he was agreeably surprised that matters had gone no further than Coyne's report would show, for it is easy to believe that he may have expected that in addition to, or instead of, going to the theatre, his wife and Cane would resort to some convenient place where they could indulge their passions. The resuming of frequent and extended visits to Bogota, where Mrs. Brown met Cane with less restraint, were clearly not encouraged, but rather discouraged, by Brown, and evidently increased his suspicions; and here it is important to observe that Cane swears he knew for some time before November 5th that Brown had employed a detective to watch Mrs. Brown and himself. The report of the detective of what he had seen and heard on November 5th at Mrs. Van Keuren's house at Bogota, gave the case a different aspect at once. We have seen that one of the solicitors of the petitioner called immediately on Mr. Van Keuren and told him what had been observed, and the evidence shows clearly that Mr. Van Keuren told his wife, who immediately came to visit Mrs. Brown, and a conference was there had, all before the suit was commenced. And it appears that at dinner on November 15th, or near that date, Mr. Brown announced to his wife that he was about to sue her for divorce. Her account of the interview is that she at once denied the charge, and that her husband said she would have an opportunity to meet it. But the cook, Rose Sexton, swears that Mrs. Brown said it, the suit, "was a mean, contemptible thing, and that she would go home to her mamma and papa that very night." This review of the evidence leads me to the conclusion that the case discloses no such encouragement, connivance or acquiescence on the part of the husband as bars his remedy. I do not deem it worth while to discuss the rules defining connivance as laid down in the books. Chancellor Zabriskie does so to some extent in Hedden v. Hedden, 6 C. E. Gr. 61, and Mr. Bishop deals fully with the subject in 2 Bish. Mar., D. & S. In re Sleeper. The petitioner §§ 203-248, and particularly §§ 213–215. was, in my judgment, perfectly justified in believing that if his wife was at all disposed to go astray she had already done so before he received notice of her disposition; and while he was not justified in placing new temptation in her way, and did not do so, he was entirely justified in refraining from warning her and in watching her as he did, for if already guilty he was of course justified in casting her off. For these reasons I will advise a decree for the petitioner. In the matter of the acquisition of lands of LIZZIE A. and GEORGE W. SLEEPER by the Central Railroad Company of New Jersey by condemnation proceedings. [Submitted June 10th, 1901. Decided June 20th, 1901. A railroad company acquiring land by condemnation, and paying the award of the commissioners into court, is entitled to have all liens on the land, including liens for taxes, paid out of such fund, though the lienors are not parties to the proceedings. On motion to pay out moneys. In this case the Central Railroad Company of New Jersey took proceedings to acquire title to certain lands belonging to Mrs. Sleeper and her husband, with the result that after an award of commissioners an appeal was taken and the jury found the value of the lands, with damages, to be $1,850. The railroad company did not make any persons parties to its proceedings. except Mr. and Mrs. Sleeper. It, however, became aware that there were certain taxes assessed by the city of Jersey City that were in arrear and a lien upon the premises, and being advised that the award of commissioners and verdict included the whole value of the lands free of encumbrance, and that the taxes were an encumbrance, paid the money into court In re Sleeper. under the eighth section of the act of March 20th, 1900. P. L. of 1900 p. 79 (at p. 82). Application was thereupon made on behalf of Mr. and Mrs. Sleeper to have the whole of said sum of money paid out to them. This motion was resisted by the railroad company and by the mayor and aldermen of Jersey City. By its answer the municipal corporation sets up taxes amounting, with interest, on the 20th of May, to $263.33, which were a lien upon the premises. Mr. George T. Werts, for Mr. and Mrs. Sleeper. Mr. William A. Barkalow, for the Central Railroad Company. Mr. John W. Queen, for Jersey City. PITNEY, V. C. Counsel for the railroad company and for the city both insist that there is no difference, for present purposes, between a lien for taxes and a mortgage or judgment lien, and that the amount awarded by commissioners or by the verdict of a jury on appeal represents the whole value of the land without any deduction for liens of any sort. On the other hand, counsel on behalf of the Sleepers claims that the contention of the other side, if acceded to, results in the adoption of a new mode of collecting taxes not recognized by law, and that the city is confined to its statutory remedy of selling the land to pay the taxes. I think the latter argument not sound. The question is whether the Central Railroad Company is not in law entitled to have all liens upon the land paid out of this fund. If it had made the city a party to the condemnation proceedings there would have been, as it seems to me, no doubt about its right in that respect, and that right would have been fully protected by such action. But it also seems to me quite clear that the eighth section of the act above cited provides a method by which the condemning corporation may, without first searching for lienors and making them parties, have all liens upon the land Goldstein v. Ewing. paid out of the fund by paying it into court and giving notice to those parties of such payment. The question, then, comes to this: is there any essential difference between the lien of taxes upon land and the lien of a mortgage or judgment? For it is abundantly established by authority in this state that, in a case like this, an award is presumed to include the whole value of the land, free of encumbrance, and that the mortgagee or other lienor is entitled to be paid out of the fund, and the party acquiring the land by condemnation proceedings is entitled to have such payment made out of the fund in exoneration of the land acquired. The leading case is Platt v. Bright, 4 Stew. Eq. 81, and, on appeal, 5 Stew. Eq. 362. And see Gray v. Case, 6 Dick. Ch. Rep. 426. I think there can be no doubt that the lien for taxes stands on the same ground as other liens. This seems to be the well-settled practice in New Jersey and is illustrated in the recent case of Burnet v. Dean, 15 Dick. Ch. Rep. 9; on appeal, 49 Atl. Rep. 503, which was a foreclosure of a mortgage, and the municipality of South Orange was made a party by reason of its claim of lien for taxes and set up its claim by answer, and it was adjudicated upon and a decree made for certain taxes, giving them precedence over the complainant's mortgage. I will advise a decree accordingly. ALBERT GOLDSTEIN v. BERNARD M. EWING et al. [Submitted June 28th, 1901. Decided June 28th, 1901. The power to inquire into and adjudicate upon the validity of an election of officers by both municipal and private corporations is, by the constitution, vested solely in the supreme court of this state, and the legislature has no power to vest any part of that judicial jurisdiction in any other tribunal. |