Argued before EMERY, C. J., and WHITEHOUSE, SAVAGE, SPEAR, CORNISH, and KING, JJ.

Williamson & Burleigh, for plaintiff. Staples & Glidden, for defendant.

CORNISH, J. This was an action of assumpsit to recover a broker's commission on the sale of real estate, based upon a written agreement dated June 27, 1904.

The defendant pleaded the general issue, together with an equitable brief statement, alleging fraud in the inception and execution of the written contract, and claiming that under the actual oral agreement, made between the parties she was to pay the plaintiff $20 when the farm was sold, to cover the expense of cataloguing and advertising, whether the sale was made through the plaintiff's efforts or her own, and that there was to be no further charge against her of any kind.

By agreement of counsel, the case was submitted to the jury upon these pleadings, they to pass upon the question of fraud, and, if the defendant's contention were sustained, the jury were authorized to give the plaintiff a verdict of $20 as if the contract itself had been reformed. This the jury did, their verdict being for $20, with interest from the date of sale. The plaintiff on motion seeks to have this verdict set aside as against the evidence.

The vital question is the proof of deliberately planned and carefully executed fraud on the part of the plaintiff's agent, Hutchins; for on no other hypothesis can the verdict be sustained. The charge is a serious one, and the law imposes upon the defendant the burden of substantiating it by clear and convincing proof. "A stricter standard in some such phrase as 'clear and convincing proof' is commonly applied to measure the necessary persuasion for a charge of fraud." Wigmore, Ev. § 2498. It must be "clear, convincing, and satisfactory." Liberty v. Haines, Adm'r, 103 Me. 182, 68 Atl. 738.

In effect, the proceeding here involved the reforming of a written contract on the ground of fraud, and the law is well settled that, to enable a court in equity to exercise this power, proof of the fraud must be full, clear, and decisive, and relief will not be granted where the evidence is loose, equivocal, or contradictory or in its texture is open to doubt or opposing presumptions. Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290; Fessenden v. Ockington, 74 Me. 123. This rule is especially enforced where the oral evidence comes mainly from the parties to the suit. Parlin v. Small, 68 Me. 289.

The proof in this case falls far short of this standard. The only evidence of fraud comes from the defendant herself, who, in mechanical and oft-repeated phrase, says that the agent told her "his terms were $20 for advertising and so forth"; that "it would cost her $20 whether he sold the place or she

saying that "It was a document to show that she would pay him the $20"; and that she did not read it or hear it read, but relied upon his statement as to its contents. This testimony is without corroboration. Against it was the clear and positive statement of Mr. Hutchins that the terms of the contract as written were precisely as agreed upon orally; that he read the agreement to the defendant and explained it fully; that she looked on while he was reading; and that she then signed it, after having ample opportunity to examine it further if she had desired. The inherent improbability of the defendant's version strikes one forcibly. She was a woman of mature years and of intelligence, and it is highly improbable that she would have signed a contract with a comparative stranger without first learning its contents either by reading it herself or having it read to her. It is equally inconceivable that Mr. Hutchins would have agreed to take property into his hands valued by her at $1,200, and negotiate a sale for the paltry sum of $20, a commission of 1% per cent. on the asking price, including expenses which might naturally consume a large portion if not the whole of that amount, when his usual rates were the same as expressed in the contract. He would be giving his services for nothing.

Nor is it easy to believe such deliberate fraud on the part of Mr. Hutchins, when we consider that he had no personal interest in the matter, but was acting for the plaintiff, and that this agency had sold more than 100 farms in this single county during the past few years. Such conduct would be more easily attributable to a transient promoter than to the proprietor of an established business, where experience teaches that honesty is the best policy.

It further appears that the property was finally sold through the efforts of the plaintiff's agent Mr. Morrill, who succeeded Mr. Hutchins in that locality. As the result of previous correspondence, a sister of the purchaser, with two others, went to Brunswick, and met Mr. Morrill by appointment. He procured a team with driver, and sent them to the defendant's farm with a note to Mr. Jaques, a relative and confidential adviser of the defendant. He quoted $1,100 as the selling price; a reduction having been authorized from the original figure. The trade was closed that day between the parties themselves on the premises for $1,050, although great care was taken to conceal the fact from Mr. Morrill by both the defendant and the purchaser, who during the negotiations asked the defendant the significant, and yet not unusual, question whether she could sell the place herself.

It was not until some weeks later, when the parties met in Brunswick to make the transfer, that Mr. Morrill accidentally learned of the sale, and he then asked for his commission in accordance with the contract. Un

plaintiff had fulfilled his part of the agreement and was entitled to his compensation; but this seems to have been one of a class of cases, not too uncommon, where avarice weakens principle, and, after a purchaser has been found through the efforts of a broker, the owner, in closing the deal, is willing to make a reduction from the purchase price and stand his chances of avoiding the payment of commissions.

The evidence in this case shows good faith rather than fraud on the part of the plaintiff and his representatives, and the verdict of the jury is so glaringly wrong that it cannot be allowed to stand.

Verdict set aside.

(77 N. J. L. 186)

ANDERSON v. MYERS. (Supreme Court of New Jersey. Nov. 9, 1908.) 1. QUO WARRANTO (§ 32*) - PROCEEDINGS PARTIES PLAINTIFF-USE OF NAME OF STATE.

Quo warranto proceedings, instituted under Act April 8, 1903 (P. L. 1903, p. 377), on the relation of one claiming title to a municipal office against an alleged intruder, being a suit affecting the public interest, the state is, to a legal intent, a party, and its name should be made a part of the title.

[Ed. Note. For other cases, see Quo Warranto, Cent. Dig. § 39; Dec. Dig. § 32.*] 2. PARTIES (§ 95*)-Quo WARRANTO-PARTIES PLAINTIFF USE OF NAME OF STATE-DEMURRER.

The omission of the state from the title, in quo warranto proceedings instituted on the relation of one claiming title to a municipal office against an alleged intruder, is a formal defect, which is amendable, and is not ground of demurrer.

[Ed. Note.-For other cases, see Parties, Cent. Dig. 161; Dec. Dig. § 95.*]

3. MUNICIPAL CORPORATIONS (§ 149*) - LICENSING OFFICERS-QUALIFICATION.

The provision in P. L. 1901, p. 240, that the failure of a person, appointed to be a member of a board of excise commissioners, to qualify within 10 days shall cause a vacancy in the office refers to all appointments, original or otherwise, and an appointee's omission to take the required oath of office within 10 days after his second appointment cannot be cured by his later qualification.

[Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 149.*]

4. MUNICIPAL CORPORATIONS (§ 149*)—ExCISE COMMISSIONERS-TITLE TO OFFICE.

A person appointed to succeed himself as a member of a board of excise commissioners, who fails to qualify by taking the prescribed oath of office within 10 days, as required by P. L. 1901, p. 240, declaring that such failure shall render the office vacant, acquires no title to the office as against one appointed to fill the vacancy, who, having legally qualified, can assert in the same suit the right to the public and his own right to the office.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 149.*]

Quo warranto on the relation of James D. Anderson against William S. Myers. Judgment for relator.

See, also, 67 Atl. 1036.

Argued June term, 1908, before GARRISON, SWAYZE, and PARKER, JJ.

Nelson B. Gaskill, Asst. Atty. Gen., for relator. Alan H. Strong, for respondent.

PARKER, J. This is an action of quo warranto, begun pursuant to section 4, Act April 8, 1903 (P. L. 1903, p. 377), which sec tion was originally enacted in 1884 (P. L. p. 3207; Gen. St. 1895, p. 2633, § 4), and permits any citizen of this state, believing himself entitled to a municipal office or franchise, to file as relator an information in the nature of a quo warranto against an alleged intruder, and without obtaining the leave of this court to file such information in the name of the Attorney General, as was formerly necessary, and still is necessary when the relator is not a claimant. Under the act of 1884 as originally passed it was held that only the title of the respondent to the office could be inquired into. Davis v. Davis, 57 N. J. Law, 206, 31 Atl. 218. But in 1895 two further acts were passed, one approved February 18th (P. L. 1895, p. 82), providing that on a proper record this court might determine the title of the relator, as well as the respondent, and enforce its judgment by proper process, and another, approved March 19th (P. L. 1895, p. 344), providing that on a judgment of ouster and in favor of a relator the court may make appropriate orders regarding the surrender of the office and the transfer of its records. The effect of these various acts has been described obiter as turning the suit into a private controversy between the parties. Manahan v. Watts, 64 N. J. Law, 465, 470, 45 Atl. 813. We shall have occasion to touch on this point presently.

The record before us raises the issue: (1) Whether respondent usurps or intrudes into the office of member of the board of excise commissioners of the city of New Bruns wick; and (2) if so, whether relator is entitled to hold said office. It consists of the information and demurrer thereto. The demurrer questions the sufficiency of the facts, pleaded in the information and admitted by the demurrer, to establish relator's title to the office, even if a vacancy exist; but this defense was not argued or briefed, and our examination of the case satisfies us that, if a vacancy existed on June 1, 1907, the date of relator's appointment to the office, relator is entitled to hold it. The real controversy relates to the title of respondent. It appears that under and by virtue of the act of 1901 for the establishment of an excise department in cities, the city of New Brunswick in 1905 passed an ordinance to create a board of excise commissioners, a copy of which was duly filed, as provided by law, and that the judge of the court of common pleas in due course appointed in September, 1905, the

three members of the board for terms of one, two, and three years, respectively, the respondent Myers being appointed for one year; that at the expiration of his term, on September 11, 1906, he was again appointed by the court to succeed himself, but for a term of three years, but failed to qualify by taking the oath of office within 10 days, as required by the statute of 1901. It is also alleged that he failed to take certain other oaths provided by the city charter, and that he became further disqualified by removing his residence from New Brunswick, the act requiring members of the excise board to be residents and legal voters within their respective municipalities. These latter claims we have found it unnecessary to discuss.

Relator is met at the outset by the proposition that the state should be a party to this proceeding, but does not appear on the record as such. It is true that the state is not named in the title of the cause, nor is the Attorney General brought into the body of the information. The question then arises, Should the state be a party? and, if so, Is it to a legal intent a party in this proceeding? We think both these questions should be answered in the affirmative. In Davis v. Davis, ubi supra, the state was a party in name and in fact, for the court, in awarding judgment of ouster in that case, imposed a substantial fine for the usurpation of the office. And Chief Justice Beasley, in discussing the effect of the act of 1884, was careful to assert a prerogative control of this court over the action, and to deny the competency of the Legislature to confine it by statutory enactment. It is true that this was before the Acts of 1895 were passed, but we cannot see that they have altered the situation in any way as affecting the presence of the state as a party to the suit. So far from abridging the powers of this court, they have enlarged them by enabling the court to adjudge the title of the claimant, and place him in possession. The remark of the late Justice Lippincott in Manahan v. Watts, 64 N. J. Law, at page 470, 45 Atl. at page 815, that "in this proceeding it is merely the private rights of the parties that are affected, and not a case affecting public interest, where the people are the real, as well as the nominal, prosecutor," was not in our estimation necessary to a decision of that case, and we cannot concur in it. Whatever the entitling of the suit, or the form of the record in such a case, the state is still a party so far as to give this court full control of the litigation in the public interest. To hold otherwise would be to paralyze the arm of this court, to disable it from inflicting punishment in a proper case upon a usurper, and to enable public offices to be transferred between private individuals by collusive suits. Relator's counsel, no doubt, omitted the name of the state from the title of the cause in deference to the rule of this court, adopted at November term,

name of the state shall not be used merely because of the nature of the writ or proceeding, but instead the name of the party in interest shall be used." Before the adoption of this rule came Act 1900, c. 48 (P. L. 1900, p. 73), section 2 of which is distinctly narrower in its scope. "The name of the state shall not be made a part of the title of any cause or proceeding merely because of the nature of the writ or other proceeding by which it is taken into court." The same course was pursued without criticism in Hayter v. Benner, 67 N. J. Law, 359, 52 Atl. 351, and Decker v. Daudt (N. J. Err. & App.) 67 Atl. 375, both cases under the fourth section of the act of 1903. But in our opinion the state is none the less a party because of the right conferred on a certain class of private relators to institute the suit, and a mere rule of practice neither has, nor was intended to have, the effect of eliminating it as such party. Even if the omission of the state from the title be a defect, it is merely a formal one, not the subject of general demurrer, and amendable. This ground of demurrer must therefore fail.

The question then arises whether respondent forfeited his office by failing to take the oath within 10 days after appointment. The provision of the statute (P. L. 1901, p. 240) on this point is as follows: Section 3 provides for the original appointment of members for one, two, and three years, the appointment of successors after expiration of terms, and the filling of vacancies for unexpired terms. Section 4, that within 10 days they shall meet and organize by electing a chairman and taking a prescribed oath; that the city or town clerk shall be ex officio clerk of the board, and then goes on to say, "should any person or persons appointed to be a member or members of any such board fail to qualify, as herein provided, within said ten days, such failure shall cause a vacancy or vacancies to exist in said board, which shall be filled as hereinbefore provided." It is argued that this clause does not refer to any but the original appointments, and hence that when Myers failed, as his demurrer admits he did, to take the oath within 10 days after his second appointment, it was an omission curable by his later qualification. We think, however, that the clause quoted was intended to refer to all appointments, original or otherwise, and therefore that by Myers' noncompliance a vacancy arose. Counsel for respondent again argues that no vacancy can exist until it is judicially declared, relying on Clark v. Ennis, 45 N. J. Law, 69. That case, however, related merely to the validity of process executed by a sheriff, who, though elected for three years, failed to renew his bond annually, as required by law, and was decided on the principle that, notwithstanding the statute provided that such failure should render the office vacant, he was still sheriff de facto until a new

case at bar the oath is in our judgment a prerequisite to qualification; and, while respondent's acts as an officer de facto would be sustained on public grounds (Rosell v. Board of Education, 68 N. J. Law, 498, 53 Atl. 398; Rosell v. Avon by the Sea, 70 N. J. Law, 336, 57 Atl. 1132), the taking of the oath in form as required by law is as essential to his enjoyment of the office as the appointment itself. So it was held by this court in cases where the relator claiming the office had failed himself to qualify by taking the oath (Hayter v. Benner, 67 N. J. Law, 359, 52 Atl. 351; Manahan v. Watts, 64 N. J. Law, 465, 45 Atl. 813), and we conceive that the same principle must apply to the respondent whose title is attacked. There seems to be no valid reason why in such a case a legal appointment cannot be made to fill such vacancy, nor why the appointee having legally qualified, cannot assert in the same suit the right of the public to oust the intruder and his own right to take and hold the office. The statute seems to be framed to meet just such a contingency, and the public good is subserved by avoiding a hiatus in the tenure.

Our conclusion, therefore, is that the demurrer should be overruled, with costs, and judgment entered that the respondent should be ousted from the office of excise commissioner of New Brunswick, and that the relator is entitled thereto.

ing out of matter in pais. The time of nonuser may be immaterial.

[Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 77-79; Dec. Dig. § 30.*] (Syllabus by the Court.)

Bill by Mary L. Mason against James Ross for an injunction. Bill dismissed.

The accompanying diagram contains a sufficient number of the lines on the page of the City Atlas of Trenton, which was offered in evidence, to illustrate the references to boundary lines and dimensions set forth in the opinion.

(75 N. J. E. 136)

MASON v. ROSS.

(Court of Chancery of New Jersey. Oct. 27, 1908.)

1. DEDICATION (§ 31*)-HIGHWAYS-ACCEPT

ANCE.

Dedication of a public highway may be made by the creation of an easement of way in a deed of conveyance describing the way as a street, and the dedication may be made in præsenti, to be accepted and used in futuro. Until accepted by the public authorities, either formally or by being worked and repaired, it remains a private easement.

[Ed. Note.-For other cases, see Dedication, Cent. Dig. 8 64, 65; Dec. Dig. § 31.*] 2. HIGHWAYS (§ 79*)-NONUSER-EFFECT.

Nonuser of a public highway for more than 20 years will not operate to extinguish the public's right of easement.

[Ed. Note.-For other cases, see Highways, Cent. Dig. 281; Dec. Dig. § 79.*]

3. EASEMENTS (§ 30*) — PrivATE WAY - NON

USER.

Nonsser of a private way for more than 20 years will operate to extinguish an easement, if coupled with an adverse enjoyment.

[Ed. Note.-For other cases, see Easements, Cent. Dig. § 77-79; Dec. Dig. § 30.*] 4. EASEMENTS (§ 30*) — ABANDONMENT - ExTINGUISHMENT.

A right of way, either public or private, may be lost by abandonment; and it is not so much the duration of the cesser to use, but the nature of the acts done, which are material in determining whether or not the easement has been extinguished by an equitable estoppel aris

PROPERTY!

COMPLAINANT'S

229+

John H. Backes, for complainant. William J. Walsh and Barton B. Hutchinson, for defendant.

WALKER, V. C. The defendant commenced the erection of a dwelling house upon a lot of land 25 feet in width and 204 feet in depth, fronting on the easterly side of Southard street, in the city of Trenton, and the progress of the work was arrested by an injunction of this court. The complainant claims that she has an easement over the lands on which the building stands, either as a way appurtenant to other lands of hers, binding upon the premises in question, or as one of the public by reason of a dedication of the way as a public way or street. It is conceded that Benjamin Albertson owned the locus in quo, including the lands of the complainant and other adjacent land in 1868, and in October, 1870, conveyed to John Tay.

lor part of those lands, beginning on the easterly side of Southard street and running by the northwesterly line of a proposed street 25 feet in width, 204 feet deep. This course is the southerly line of part of the complainant's land, which land came to her mediately from Benjamin Albertson, through sundry mesne conveyances. At a later period, the time not being fixed, a row of houses was erected on the southerly side of this street, called and known as "murderers' row." Conveyances were made of houses in this row as being a certain distance easterly from Southard street, and on the southerly side of Carroll street, namely, the street in question. In the year 1895 Albertson, having disposed of all of the rest of the tract, conveyed his estate in that part of it sometimes called "Carroll street," and sometimes "East Carroll street," being the lot 25 by 204 feet, on which the defendant has commenced the erection of his building, to the Mechanics' Mutual Loan Association, describing the same by metes and bounds, but not calling it a street. In December, 1895, the loan association conveyed to the defendant and John G. Hess its lands at the site in question, and the defendant claims title by virtue of the conveyance from the loan association to himself and Hess, and says that by virtue thereof they entered into the full and absolute possession of the tract and held the same, and subsequently, in the same year, erected on the lands, about 100 feet easterly from Southard street. a garbage crematory, covering about 16 feet of the width of the land called a street, and used and operated the same for a number of years, without any objection or complaint on the part of the abutting owners, one of whom was a predecessor in title of the complainant; that the defendant and Hess filled up the lot with earth, and used it in connection with the crematory. It was necessary for them to fill the lot with earth to get access to it, because of the abutment wall of the Southard street bridge, which will be referred to subsequently. Hereafter the defendant will be referred to alone as the owner of the servient tenement. The complainant, as already said, was not an abutting owner at that time. Her title was derived by devise from her husband, whose will was proved August 19, 1898. His title was derived by conveyance dated December 10, 1897. In 1889 the county of Mercer built an elevated bridge across the railroad and canal on Southard street, north of the locus in quo, and raised the grade of Southard street, by way of approach to the bridge, to a height of about 17 feet across the tract or street in question, thus shutting off access to Southard street from East Carroll street, so called. Some time since, the houses known as "murderers' row" were demolished, whereupon all apparent traces of the street became obliterated. During the time the "row" was in existence there appears to have been a few trees

sidewalk seems to have existed from the "row" to Southard street. There apparently never was any clearly defined street at the point in question; the houses being built on what had the appearance of a small common. The intention of Albertson was undoubtedly to lay out and dedicate a street, to be called East Carroll street, leading from Southard street easterly. Not only did he and his successors in title make conveyances with reference to the locus in quo as a street, but the title to part at least of the land on the Albertson tract which has come to the defendant makes express mention of the street, and put him upon notice as to its locality, if in fact he did not know of its lines. Upon this score there is no difficulty.

It is conceded that the municipal authorities of Trenton, within whose corporate limits are the premises in question, never accepted the proposed street, or repaired or worked it, assuming the public to have gained an easement therein by dedication or user. Counsel for complainant relies largely upon Booream v. North Hudson County R. R. Co., 40 N. J. Eq. 557, 5 Atl. 106, in which the Court of Errors and Appeals said: "When the language of a deed is sufficient to create an easement of a right of way over the premises conveyed as an appurtenant to the grantor's premises lying adjacent thereto, and words are added indicating a purpose to dedicate the way as a public street, held, that the creation of a public right, to be enjoyed in futuro whenever the public authorities might see fit to accept the dedication, was not inconsistent with the private easement, which inured to the grantor immediately from the grant, and that the latter was entitled to the use of the way, although the public had not accepted the dedication." No map or plat of the tract showing the street in question was ever filed, and the defendant lays great stress upon that fact, and claims that there is no evidence of a dedication. But I do not understand that a map or plat is necessary; for, as was said by Vice Chancellor Reed, in Seibert v. Graff (N. J. Ch.) 38 Atl. 970: "Although there may be no reference to a map, yet the fact that land is described in a deed as bounding upon a street, and there are marked, upon the grounds adjacent to the land sold, traces of the existence of a street, this condition of affairs will produce the same result." The complainant succeeds and the defendant fails on the question of dedication. The dedication was made by Albertson in præsenti, to be accepted and used in futuro. See Mayor of Jersey City v. Morris Canal Co., 12 N. J. Eq. 547, 563. Nevertheless, in my opinion, the decision of this case does not depend upon the question of dedication or no dedication, but upon the question of equitable estoppel. In other words, has there been such an abandonment and cesser of the use of this strip of land called a street