Cogan v. Conover Manufacturing Co.

69 Eq.

CLAIM OF THOMAS COGAN.

Mr. George Holmes, for Thomas Cogan.

Mr. J. Merritt Lane, for the receiver.

This claim is based upon the provisions of a paper signed by various employes of the Conover Manufacturing Company reading as follows:

"JERSEY CITY, N. J., July 16th, 1904.

"We, the undersigned, employes of the Conover Manufacturing Company, hereby separately and collectively assign to Thomas Cogan the amounts respectively set opposite our names, same amounts being our respective pay for the week ending July 14th, 1904."

The aggregate of the amounts is $216.

The employes are given a first lien under section 83 of the statute.

But it has been held that if the employe assigns his claim before the insolvency is decreed there is at that time no lien in his favor, and his assignee therefore acquires no lien. Delaware, Lackawanna and Western Railroad Co. v. Oxford Iron Co., 33 N. J. Eq. (6 Stew.) 192 (at pp. 196, 197) (Vice-Chancellor Van Fleet, 1880).

Since at the time this assignment was made to Mr. Cogan (July 16th, 1904) the defendant company had not been decreed to be insolvent, the amounts assigned to him by the employes were merely unsecured debts, and he can only prove them as such.

The result is that the adjudication of the receiver is confirmed and the appeal is dismissed.

1. The orphans court is a superior court of general jurisdiction, and its judgments and decrees cannot be attacked collaterally.

2. A sale to pay a decedent's debts, made under an order of the orphans court, is a judicial sale.

3. A purchaser at a judicial sale is bound to take such title as an examination of the proceedings will show that he will get; but if he can legally claim that he was misled or deceived by some apparent adjudication by the court, and that it is inequitable to enforce his contract of purchase against him, he is entitled to relief.

4. Where a purchaser, at a judicial sale under an order of the orphans court, appealed to the prerogative court from an order that he complete his purchase. the court of chancery will not assume, in a suit by him for rescission of the sale, that the orphans court did not do right; or, if it was in error, that the prerogative court will not do right.

5. Where, after a judicial sale under order of the orphans court the purchaser was tendered a deed, and an offer was made to pay off mortgages which would vest in the purchaser a fee-simple, he cannot thereafter maintain a suit in chancery to be relieved from his bid.

This is a bill filed by Angelo Podesta, of Hoboken, against David W. Binns, Martha M. Binns and Emma E. Taylor, individually and as executors of the last will and testament of James Binns, deceased, Angelina Bonn, Hillric J. Bonn, Frederick Bonn. Edward Bonn, Anna M. B. Rollfs and John H. Bonn, and John E. Moody as substituted administrator with the will annexed of John H. Bonn, deceased.

The prayer of the bill is that the sale, made under an order of the orphans court of Hudson county by Moody, as substituted administrator of Bonn, deceased, be set aside and declared void, and that the said Moody, administrator as aforesaid, be decreed to return to complainant the $777 earnest money paid by the complainant at the time of the acceptance of his bid.

To this bill answers were filed by the defendants, Binns and Taylor, and by John E. Moody, as substituted administrator, &c., and a cross-bill was filed by said John E. Moody, as administrator as aforesaid.

No answers were filed by the other defendants, and a decree pro confesso was taken against them.

Replications were filed by the complainant and an answer to the cross-bill of the administrator.

The case was heard upon the pleadings and proofs taken in open court.

Messrs. Besson & Spohr, for the complainant.

Mr. Leon Abbett, for the answering defendants.

GARRISON, V. C.

There is practically no dispute with respect to any important question of fact.

The facts are as follows:

John H. Bonn, a resident of Hudson county, died on the 15th day of November, 1891, leaving Angelina Bonn, his widow, and Hillric J. Bonn, Frederick Bonn, Edward Bonn, Anna M. B. Rollfs and John H. Bonn, his children and heirs-at-law, surviving.

By his will, which was duly admitted to probate, he appointed his wife, Angelina Bonn, and his son, Hillric J. Bonn, executors and trustees.

The will of John H. Bonn, after disposing of certain of his property by specific bequests, gave, devised and bequeathed all of his remaining property to his executors and the survivor in trust for certain declared purposes, and authorized and empowered them to grant, bargain, sell and convey any and all of this property as they might deem best, and relieved the purchaser from any liability to see to the application of the purchase

money.

The said John H. Bonn died seized of considerable land in the county of Hudson.

On the 28th of October, 1898, Angelina Bonn and Hillric J. Bonn, executors and trustees as aforesaid, conveyed the lands and premises in question to John H. Bonn, one of the heirs-atlaw, a son of the deceased John H. Bonn.

The deed was recorded on the 1st day of November, 1898, the consideration mentioned therein being $5,000.

On the same day Angelina Bonn, widow of the deceased John H. Bonn, released her dower in the said lands to John H. Bonn, son of the deceased, and the deed of release was duly recorded.

On the 31st day of October, 1898, the said John H. Bonn, son of the deceased, executed a mortgage on the said lands and premises to the Hudson Trust and Savings Institution, now called the Hudson Trust Company, to secure the sum of $5,000, which mortgage was duly recorded, is still upon the record and is not paid.

On the 21st day of November, 1898, the said John H. Bonn. son of the deceased, and his wife conveyed the said lands, subject to the above-mentioned mortgage, to Angelina Bonn and Hillric J. Bonn, executors of the last will and testament of John H. Bonn, deceased.

The deed from the executors to the son, the mortgage from the son to the trust company, and the reconveyance of the property from the son to the executors, were done to enable the executors to raise, for the purposes of the estate, the sum of $5,000.

There was no consideration paid by the son to the executors, and the only purpose of the conveyance to him was to enable him to do that which the executors could not do, namely, mortgage the property and raise the $5,000, and when this purpose was accomplished the property was reconveyed to the executors in accordance with the arrangement.

The record title has since that time remained in the condition at which it was when the deed from the son to the executors was recorded.

On the 25th day of February, 1903, the executors of James Binns, deceased, of Brooklyn, N. Y., recovered a judgment in the circuit court of Hudson county for $6,078.90 against An

gelina Bonn and Hillric J. Bonn, as executors of and trustees under the last will and testament of John H. Bonn, deceased.

Execution was issued upon this judgment and was returned unsatisfied for want of personal estate of the said Bonn, deceased.

On the 23d of March, 1903, the executors of Binns presented a petition to the orphans court of Hudson county in the matter of the estate of John H. Bonn, deceased.

They recited therein the recovery of their judgment; that John H. Bonn, deceased, died seized of certain lands in the county of Hudson, which are set forth and described; that they had, on the 11th of March, 1903, requested the executors of Bonn, deceased, by notice in writing, to take proceedings to obtain a sale of the lands of the deceased, and that said executors of Bonn had neglected and refused to take such proceedings, although more than a month had elapsed since they had been requested to do so, and they prayed that the orphans court should make an order to show cause why the lands of Bonn, deceased, should not be sold to pay the debt due the petitioners.

The orphans court of Hudson county granted the prayer of this petition and made an order to show cause why the land should not be sold to pay the judgment of the executors of Binns, and due notice to all the parties in interest was given as required by the court.

Such proceedings were had thereunder that on the 27th of November, 1903, a final order was made on said petition, in which final order it is recited that the court found that John H. Bonn, deceased, died seized of certain real estate therein described; that title to the said land is still in the heirs-at-law or devisees of said Bonn, or some one or more of them: that the executors of Binns, deceased, obtained a judgment (as before set forth) against the executors of Bonn, and that an execution issued thereon was duly returned unsatisfied for want of personal effects; that the lands and premises of which the decedent died seized were still undisposed of, and that, on the 12th of March, 1903, notice had been duly given to the executors of Bonn to sell said lands to pay said judgment, and that thirty