MERCER CO. NJ
COURT RECORDS
 

"Reports of cases argued and determined in the Court of Chancery, the Prerogative Court and on appeal in the Court of Errors and Appeals of the State of New Jersey" by Charles Ewing Green, Vol.XII; New Jersey Equity Reports, Vol.27, pgs.259 to 266 (California State Law Library, Sacramento, 2/2004)
      BARNES and others vs. TAYLOR and others; Court of Chancery of New Jersey; 27 N.J. Eq. 259; 12 C.E. Gr. 259; May, 1876, Decided.
      Bill for relief. On final hearing on pleadings and proofs.
      [opinion] THE CHANCELLOR. The bill is filed by the children of William S. Barnes, deceased, and the widow and children of John R. S. Barnes, deceased, against Dr. John L. Taylor and his wife, and against Dr. Taylor as executor of Isaac Barnes, deceased, who was the father of William S. Barnes and John R. S. Barnes and of Mrs. Taylor. The controversy between the parties is in reference to the estate of Isaac Barnes, the testator above mentioned. By his will he gave all his estate, real and personal, to his three children, John R. S. Barnes, William S. Barnes and Mrs. Taylor, subject to a provision for his wife, contained in a power to his executors, (his two sons and Dr. Taylor,) to sell any part or the whole of his estate, as they might deem expedient, with direction to invest the proceeds of sale, after paying the legal demands against the property; his wife to receive the interest of the investment for life. The testator died in 1848; his widow in 1851; William S. Barnes in April, 1873, and John R. S. Barnes in May, 1874. The bill was filed on the 29th of June in the last-mentioned year. The testator was the owner, at his death, of certain household furniture and a stock of merchandise in his store in Trenton, and he died seized of certain real estate in that city. Part of the latter was encumbered by a mortgage given to Isaac Brown Parker, and another part by a mortgage given to James J. Duncan. Under foreclosure of those mortgages, the land thereby mortgaged was sold to Dr. Taylor by the sheriff, in 1852. The rest of the testator's land consisted of a lot sold by his executors to Joseph C. Potts in 1848, for $6250, and a lot sold by his devisees in 1850 to William B. Brittain, for $1212 50. The bill alleges that Dr. Taylor was acting executor; that no inventory or account of the personal estate was ever filed; that he received all the rents of the real estate, and is chargeable with the price of the land sold to Potts and Brittain, which, or so much thereof as might have been necessary for the purpose, after application of the personal estate and rents received by him, the complainants insist he ought to have applied to the satisfaction of the Parker and Duncan mortgages. The bill charges that instead of so doing, he caused the property mortgaged to Parker and Duncan respectively, to be sold under foreclosure, and purchased it at the sheriff's sale, and that he purchased the property mortgaged to the former, on an agreement made by him with William S. Barnes and John R. S. Barnes before the sale. The statement of the bill on the subject of the agreement is, that it was understood and agreed by and between him and William and John, that as they were not in a condition to enable them to raise money to pay off their respective proportions of the money due on the decree of foreclosure, the mortgaged premises should be sold, and that he should become the purchaser at the sale, provided they were sold at about the sum for which they stood charged by the decree; but that such purchase was to be upon the express understanding and agreement between him and them, that he should take and hold the title, first as security for the sum he might be required to bid and pay therefor on the sale, and next for the joint use of his wife (who was their sister,) and them, according to the devise in the will of their father. The bill states that he purchased the property at the sheriff's sale, and paid for it $11,000. The decree was for $6133.36, besides interest. It further states that he purchased the property mortgaged to Duncan on the same agreement, understanding and trust. The decree in that case was for $1016.28, besides interest, and the property was sold to him for $1655. The bill alleges that at these sales he prevented bidding against him by requesting different persons who were in attendance, not to bid against him, as he was, as he alleged, bidding on the property to buy it for the devisees. It states that he permitted William S. Barnes to occupy part of the property purchased at the sale under the Parker foreclosure, during his life, and his children after his death, and that John R. S. Barnes, also, after the sheriff's sales, occupied, without paying rent, other parts of the property, and that such occupation, on the part of William and John, was under an agreement between him and them that it was to be accounted for in the settlement thereafter to be made under the trust. The bill prays an account, and that Dr. Taylor and his wife may be compelled to convey to the complainants their shares in the property, or that the property may be sold and the complainants may be paid their just shares.
      The claim in this case is one which, for obvious reasons, cannot be favored in a court of equity. It is a stale claim, made under circumstances which cannot fail to weigh heavily against it. It is an effort to hold to the strictest possible accountability one of the three executors, after a period of over twenty years has elapsed since the occurrence of the transactions from which his supposed liability is claimed to have arisen; and not only so, but the persons who make the claim are the children of one, and the widow and children of the other of his co-executors. The filing of the bill has been deferred until both of these co-executors are dead. William S. Barnes died in 1873, and John R. S. Barnes died in May, 1874. The bill was not filed until June of the year last mentioned. By the death of John, the defendants were deprived of the only witness who, besides Dr. Taylor, could speak of the transactions which are called in question. It appears that the personal estate of the testator consisted of his stock in trade and household furniture. The former went into the hands of William and John, who had the entire benefit of it, and they, or one of them, also had the benefit of the latter, except such insignificant part thereof as was taken by their mother for her own use. These complainants, claiming under William and John, who never accounted at all for the property which came to their hands, are in no situation to demand an account from Dr. Taylor of the personal estate. It does not appear that he had any part of it, except it may have been the bed and bureau brought to his house, for her own use there, by the testator's widow. No offer is made in the bill by the complainants, to account for that part of the personal property received by William and John. It appears that there was no personal estate applicable to the payment of the mortgage debts, because it was taken into possession and consumed by William and John. It appears, also, that the same persons received all the consideration, $6250, of the sale by the executors to Potts, and, for aught that appears, they received also, all the consideration, $1212.50, of the sale to Brittain. But, however that may be, this latter sale was not made by the executors, but by the devisees. It is in evidence, also, that William and John received the rents of all the real estate sold under the foreclosures up to the time of the purchase thereof by Dr. Taylor. The mortgages had been given by the testator. That at the time of the foreclosure of the mortgages, there was no personal property applicable to the payment thereof and no means to prevent a sale of the premises under foreclosure, is abundantly manifest from the statements of the bill itself. It alleges that the reason for the making of the agreement which it sets up, by which Dr. Taylor was to purchase the mortgaged premises in trust for himself to re-imburse him for the purchase money he would have to pay, and interest, and in the next place for the devisees, was that William and John "were not in a condition to enable them to raise the money to pay off their respective proportions of the mortgages or decrees and the costs and expenses thereof." At that time, then, there were no means to pay off the mortgages, whether personal property or rents, or proceeds of sale of real estate. If such an agreement was made, it distinctly recognized the fact that it was necessary, in order to pay off the mortgages, for the devisees to make contribution. At that time the furniture and stock in trade, which were all the personal property, had been disposed of, and the land sold by the executors had been conveyed to Potts, and that sold by the devisees had been conveyed to Brittain. It was not claimed that Dr. Taylor had received any part of the estate for which he ought to account, but the statement as to the agreement concedes the fact that there were no means of the estate applicable to the payment of the mortgages. William and John, by whom the agreement is alleged to have been made, were both fully aware of the situation of their father's estate. Their opportunities for knowledge were quite as good, to say the least of it, as Dr. Taylor's. They, rather than he, had been the active executors. Indeed, there is no proof to sustain the charges of the bill that he was the active executor. They knew who had received the benefit of the personal property. They knew who had had the rents, and who had received the $6250 for the land sold to Potts, and the $1212.50 for the property sold to Brittain. Nor did they or either of them, at any time, so far as appears, make any demand or claim upon Dr. Taylor for any account in respect of the estate, but both were recipients of pecuniary favors at his hands, granted by him as bounty, and recognized by one of them, at least, as such. It is incredible that these two men, both poor from the time of these purchases at sheriff's sale down to the day of their death, should not, if the allegations of the bill are true as to the purchase of the mortgaged premises, at least have made some application to Dr. Taylor, looking to the receipt by them of their interest in the property, or some equivalent therefor, or some compensation for or in respect to it. It is incredible that, under such circumstances, they should both have been the recipients of what he extended to them as bounty, without a suggestion of claim on their part to any interest in the property. The bill states that he paid the price at which the property was struck off to him, and that he paid it out of his own money, also. The very terms of the alleged trust were, according to the bill, that he should, in the first place, re-imburse himself out of the property for the sum he might be required to bid and pay therefor. He denies the existence of the alleged agreement. On this point, his answer is responsive. It explicitly denies the statements of the bill, and he is entitled to the benefit of it. Mrs. Paxson, indeed, testifies that she, with others, signed a paper in 1851 or 1852, as nearly, she says, as she can remember, in Dr. Taylor's office, and she says she was "under the impression, and was led to believe, that it was to give him authority to act for the heirs of the property left by her grandfather, William Smith, and the testator, Isaac Barnes." Dr. Taylor testifies that there never was any such paper. The testimony of Mrs. Paxson on this point is not sufficiently positive or distinct to found a trust upon. She has probably mistaken the character of the paper she was requested to sign. The great length of time which elapsed between the act to which she testifies and the time of her giving her testimony will account for the indistinctness of her recollection, and for the error into which she has probably fallen as to the nature of the paper. The only other evidence of trust as to the property sold under the foreclosure of the Parker mortgage is the testimony of Isaac Barnes and Lewis H. Leigh, two of the complainants, who swear that in a conversation after the death of William S. Barnes, which occurred, as before stated, in April, 1873, Dr. Taylor said he "bought in the property for the heirs." This evidence of admission is insufficient under the statute of frauds, without proof of an agreement made before the sale. As to the property sold under the Duncan foreclosure, the only additional evidence is that of William H. Potts, who testifies that Dr. Taylor, at the sheriff's sale of that property, requested him to stop bidding, giving as his reason, that he did not want the property to go out of the family, and that it was being sold to perfect the title. He says he stopped accordingly. It may be remarked that there is no attempt made to prove any declarations of Dr. Taylor at the sale of the property sold under the Parker foreclosure, nor that there was any effort on his part, on that occasion, to deter any one from bidding. The answer denies that at any of the sheriff's sales, Dr. Taylor requested any person attending to refrain from bidding for any part of the land exposed to sale, or that he represented to any person, in any way, that he was bidding at the sale for the benefit of the devisees of Isaac Barnes; and he expressly and explicitly, when examined as a witness, contradicted Mr. Potts. He is entitled to the benefit of his answer. Mr. Potts alone testifies to the alleged fact, and he is not corroborated by any witness or any circumstance. Besides, the trust which would be raised by such action on the part of Dr. Taylor would be e maleficio, and therefore a constructive trust, and such a trust is barred by the statute of limitations, which the defendants have pleaded. For over twenty years, Dr. Taylor has held possession of the property in question, and has exercised over it acts of complete and exclusive ownership. He has paid the taxes on it as his own, has mortgaged it, and has in every way notoriously claimed to be the owner, to the knowledge of both William and John, who permitted him so to treat and deal with it, and never questioned his right so to do. John, notwithstanding the statement of the bill to the contrary, does not appear to have occupied any part of the property after the sheriff's sales. William occupied part of it, but Dr. Taylor swears it was entirely by sufferance, and there is no evidence to the contrary. Neither William nor John ever took any steps to bring Dr. Taylor to a settlement, or to challenge his title, but for over twenty years permitted him to claim and deal with the property in all respects as his own. Here is such proof of acquiescence on the part of those immediately affected by the alleged frauds, as conclusively settles the merits of the case, before this court, against the complainants. The bill does not seek an account of the surplus on the sale of the property covered by the Parker mortgage. The widow of Isaac Barnes was dead at the time when that sale and the sale under the Duncan mortgage took place. The surplus on them belonged to the devisees. Dr. Taylor swears that he paid the sheriff $11,000 for the property sold under the Parker foreclosure, and the bill states that he paid it. He swears that he paid the sheriff the amount at which he purchased the property sold under the Duncan foreclosure, and that he never received any part of the surplus in either case. The sheriff is dead, and there is no evidence on his books as to what disposition was made of the surplus in either suit. Dr. Taylor was not chargeable with the money as executor. Nor is there any evidence that William and John did not receive, at least, their shares of it. The bill will be dismissed, with costs. (footnote: Decree affirmed, 28 N.J. Eq. 625, 1 Stew. 625.)
 

"Reports of cases argued and determined in the Court of Chancery, the Prerogative Court and on appeal in the Court of Errors and Appeals of the State of New Jersey" by Charles Ewing Green, Vol.XII; New Jersey Equity Reports, Vol.27, pgs.266 to 271 (California State Law Library, Sacramento, 2/2004)
      BARNES and others vs. TAYLOR and others; Court of Chancery of New Jersey; 27 N.J. Eq. 266; 12 C.E. Gr. 266; May, 1876, Decided.
      On final hearing on pleadings and proofs.
      See, further, 3 Stew. 8.
      [opinion] THE CHANCELLOR. This suit is brought to establish a trust in the defendant, Dr. Taylor, in favor of the complainants, in reference to certain land which the former claims to own, and which was purchased by him at sheriff's sale under foreclosure of mortgages, one called the Swift mortgage and the other the Cadwallader mortgage. The bill prays an account and partition of the land. The complainants are Mrs. Elizabeth Paxson, the children of William S. Barnes, deceased, and the children of John R. S. Barnes, deceased. The property covered by and sold under the Swift mortgage, was owned by Isaac Barnes, who gave the mortgage upon it. He subsequently conveyed it to his brother-in-law, John R. Smith. On the death of the latter, the property descended to his two sisters -- Mary, the wife of Isaac Barnes, and Lydia, wife of Thomas Barnes. Isaac Barnes became his administrator, and sold the land, under the order of the Orphans Court, to William P. Sherman, for $15, and the latter conveyed it to Mary Barnes, (then wife of Isaac Barnes), and Mrs. Paxson (then Miss Barnes), daughter of Lydia, who was then dead. The property was sold in 1851, under foreclosure of the Swift mortgage, in a suit to which Mrs. Barnes and Mrs. Paxson were the parties defendant. The property sold under the Cadwallader mortgage was owned by William Smith, father of John R. Smith. The mortgage was given by him. He died intestate, and the property descended to his children, the before mentioned Mary Barnes and Lydia Barnes, and John R. Smith. On the death of John R. Smith, his part of the land descended to his two sisters. On the death of Lydia Barnes, subsequently, her share of the property was inherited by Mrs. Paxson, her only child. By order of the Orphans Court, however, John R. Smith's share was sold, and it was purchased by Joseph A. Yard, who conveyed it to Mrs. Mary Barnes and Mrs. Paxson. On the death of Mrs. Mary Barnes, in 1851, her share descended to her children, William S. Barnes, John R. S. Barnes, and Lydia, wife of Dr. Taylor. The suit for foreclosure of the Cadwallader mortgage was instituted against Mrs. Paxson and the children of Mary Barnes and Dr. Taylor, who was the husband of the daughter. At the sale under these mortgages, the property was purchased by Dr. Taylor, and he has held it as his own ever since (a period of over twenty years before the filing of the bill,) exercising acts of ownership over it, and in all things dealing with and treating it as his own. Nor has he, in all that time, so far as appears, ever recognized any right of the complainants, or of William S. Barnes and John R. S. Barnes or their mother, Mary Barnes, or either of them, in it. The complainants allege that, inasmuch as Dr. Taylor was one of the executors of Isaac Barnes, deceased, who was the administrator of John R. Smith, who was the administrator of his father, William Smith, and no account of either administration was ever made, it was the duty of Dr. Taylor to pay off the mortgages out of the estate of Isaac Barnes. It does not appear, however, that any money ever came, or ought to have come, to the hands of John R. Smith from the estate of his father, nor, if any was or ought to have been received by him, that he was, at his death, accountable for anything in that behalf. Nor does it appear that Isaac Barnes, as administrator of John R. Smith, was, at his death, chargeable with any money of the estate of John R. Smith. His final account was settled at June Term, 1847, of the Mercer Orphans Court, and by it there appeared to be in his hands $6092.38, distributable among creditors, whose claims proved against the estate amounted, on the 4th of January, 1841, to $8578.63. The parties interested in the estate of William Smith appeared to have acquiesced in the administration thereof for fifty years before the filing of the bill, and those interested in the estate of John R. Smith appeared to have acquiesced in the administration of that estate for over thirty years before the filing of the bill. It is alleged by the complainants that Isaac Barnes was trustee of the property in question for his wife and Mrs. Paxson, but the fact does not appear. He probably acted as their agent in collecting the rents, paying taxes and interest, but this agency ended with his death, and if there was, in fact, any trust, it devolved upon his heir-at-law. Undoubtedly, his agency was merely such as might have been expected under the circumstances, and not by virtue of any trust formally committed to him. The considerations presented in this case, in reference to the duty of Dr. Taylor, arising out of the fact that he was one of the executors of the estate of his father-in-law, have been passed upon in the case of Barnes v. Taylor, (27 N.J. Eq. 259,) decided at this present term. The distinctively different features presented by this case have reference to the alleged dealings by Dr. Taylor with Mrs. Paxson and Mrs. Barnes, his mother-in-law, and the obligations which are claimed to have arisen out of the relations between him and them, and his inability, as the complainants insist, arising from his being a tenant in common with Mrs. Paxson and Mrs. Barnes, to acquire an adverse title as against them by means of purchase at the foreclosure sales. The evidence of express trust, as remarked in the case just referred to, is by no means satisfactory. Nor is there evidence of a trust from the relation of the parties. That Mrs. Paxson and Mrs. Barnes lived in Dr. Taylor's family and were supported by him, is not enough to charge him with the care of their interest in an encumbered estate, or to disqualify him from acquiring it for his own use by purchase at foreclosure sale. He denies, in his answer and testimony, that any agreement whatever ever existed between them, or either of them, and him on the subject of a trust, or that any confidence existed between them, or either of them, and himself in respect to the property in question, or that he was ever clothed with any trust in their favor in relation to that property, or that there existed between them and him any fiduciary relation in regard to any property or interest in property belonging to them. It does not appear that Mrs. Barnes ever claimed that any such relation existed, nor that Mrs. Paxson did so until after the suit to which reference has just been made, was brought, which was in June, 1874, and it seems strange that if such relation had been understood by Mrs. Paxson to exist, she should not, in all of more than twenty years, at least, have made some inquiry as to the property, or some reference to the subject of the trust or her interest therein. If, because of his tenancy in common with her and Mrs. Barnes by virtue of his curtesy initiate, he was unable to buy, or buy under the outstanding paramount encumbrance, except it were in trust for his co-tenants to the extent of their interest therein, those co-tenants are barred by failure for over twenty years to contribute their proportion of the money advanced by him; for, in all that time, so far as appears, none of them ever even referred to the subject, although the complainants allege in the bill that the property was bought by him under an express understanding between Mrs. Paxson and him on the subject; and again, for over twenty years before the filing of the bill, he had, as before remarked, exercised notoriously, acts of exclusive ownership over the property, and had openly claimed to be the exclusive owner of it, and yet for all that period his ownership had not been challenged. The defendants set up in the answer the statute of limitations, and it is applicable in bar, so far as the property covered by the Swift and Cadwallader mortgages is concerned. It appears that one of the lots described in the bill was not covered by either of those mortgages, and therefore, Dr. Taylor has never had title to it under either of the foreclosures, and he does not claim title otherwise. He alleges that until the filing of the bill, he supposed that this land was included in and covered by the mortgage held by Lambert Cadwallader, and that the title to it had passed to him by sale under the foreclosure of that mortgage, but he says he is satisfied that he was in error. The complainants are entitled to a decree of partition of that lot, and to an account of the rents and profits for six years next preceding the filing of the bill. It is urged by defendants' counsel that no partition should be decreed, because there is no sufficient description fixing the boundaries of that lot. The lot is described in the bill by its ancient description, and there is nothing to lead to the conclusion that the identity of the property cannot be established and its boundaries ascertained therefrom. On the other hand, I am satisfied that both may be done without great difficulty. All other relief prayed by the bill will be denied. (footnote: Decree affirmed, 28 N.J. Eq. 625, 1 Stew. 625.)
 

"Reports of cases decided in the Court of Chancery, the Prerogative Court and on appeal in the Court of Errors and Appeals of the State of New Jersey" by John H. Stewart, Vol.I; (spine title: New Jersey Equity Reports - 30 - I - Stewart); "New Jersey Equity Reports" Vol.28, pg.625 (California State Law Library, Sacramento, 3/2004)
      ISAAC BARNES and others, appellants, and JOHN L. TAYLOR, surviving executor, &c., respondent; Court of Errors and Appeals of New Jersey; 28 N.J. Eq. 625; 1 Stew. 625; November, 1877, Decided.
      The opinion of the chancellor, reported in Barnes v. Taylor, 27 N.J. Eq. 259, 12 C.E. Gr. 259, was unanimously affirmed. No written opinion was delivered.
 

"Reports of cases decided in the Court of Chancery, the Prerogative Court and on appeal in the Court of Errors and Appeals of the State of New Jersey" by John H. Stewart, Vol.I; (spine title: New Jersey Equity Reports - 28 - I - Stewart); "New Jersey Equity Reports" Vol.28, pg.625 (California State Law Library, Sacramento, 3/2004)
      ISAAC BARNES and others, appellants, and JOHN L. TAYLOR, surviving executor, &c., respondent; Court of Errors and Appeals of New Jersey; 28 N.J. Eq. 625; 1 Stew. 625; November, 1877, Decided.
      The opinion of the chancellor, reported in Barnes v. Taylor, 27 N.J. Eq. 266, 12 C.E. Gr. 266, was unanimously affirmed. No written opinion was delivered.
 

"Reports of cases decided in the Court of Chancery, the Prerogative Court and on appeal in the Court of Errors and Appeals of the State of New Jersey" by John H. Stewart, Vol.III; (spine title: New Jersey Equity Reports - 30 - III - Stewart); "New Jersey Equity Reports" Vol.30, pgs.7 to 11 (California State Law Library, Sacramento, 3/2004)
      ISAAC BARNES and others v. JOHN L. TAYLOR and others; Court of Chancery of New Jersey; 30 N.J. Eq. 7; 3 Stew. 7; October, 1878, Decided.
      Bill for relief. On exceptions to master's report.
      [opinion] THE CHANCELLOR. Exceptions to the master's report were filed and brought to hearing by the complainants and by the defendant, Dr. Taylor to consider, first, those of the complainants: The bill was filed against Dr. Taylor and his wife, to establish a trust in Dr. Taylor in favor of the complainants, in regard to land mentioned in the bill, and of which he claimed to be the owner by purchase under foreclosure proceedings, and for an account of the rents and profits thereof and a partition. The trust was not established, and all the relief prayed by the bill was denied except partition and account as to certain lands which Dr. Taylor admitted, in his answer, were not covered by either of the mortgages on which the foreclosure proceedings were based, but which he had taken into his possession on the supposition that they were part of the mortgaged premises and which he had held accordingly. He admitted that he had no title thereto, and declared his readiness to yield up the possession thereof to the complainants, at the same time asserting his wife's interest therein as a tenant in common, which was not denied. Barnes v. Taylor, 27 N.J. Eq. 266; S. C. on appeal, 28 N.J. Eq. 625. The master allowed interest on the amount found due from Dr. Taylor, for rents and profits on the account, only from the date of filing the bill. The complainants insist that he ought to have made annual rests, and to have charged compound interest. Clearly, there is no ground for this claim of compound interest. It is based on the allegation that Dr. Taylor was a trustee of the property. But, as before stated, he entered into and kept possession of the property on the supposition that he was the owner of it under purchase at the forclosure sales; and, though his wife was the owner, as tenant in common, of an interest in the property, that fact did not make him a trustee for the other tenants in common. Besides, it has been established and adjudged, in this suit, that he did not hold the property in trust. He should be required to pay interest, from the end of each year, on the amount of rents and profits for which he is held accountable for that year; and the complainants should be charged with interest, in like manner, on the amount with which they are chargeable for rents.
      The master was directed to allow to Dr. Taylor, in the account, as against the amounts found due to the complainants, certain costs incurred in this suit and in another brought by the same complainants, with the exception of Elizabeth Paxson, against him and his wife in this court. He has not discriminated, as he ought to have done, in the allowance. He should not, of course, charge against Elizabeth Paxson's share of the money, for which Dr. Taylor is to account, the costs of the other suit. In this connection the exceptions as to the allowances of execution fees may be disposed of. It appears that the sheriff charged for forty-two adjournments of the sale, under the execution, for costs in each suit. The complainants except to the allowance, by the master, of the sheriff's fees for these adjournments. It is alleged that a stay of proceedings, under the executions, was granted by the court of appeals until the determination of the appeals in those suits, but what its particular character was, whether it was a stay of all proceedings or only of the sale, does not appear. This exception, therefore, will not be allowed.
      The exception that the master allowed "other fees and percentages which were not chargeable against the complainants," is too general and indefinite to be considered. The complainants further except because the master did not, in the account, credit the complainants with Mrs. Taylor's share of the costs of this suit. It is obvious that this exception cannot be sustained. So, also, of the exception based on the ground that the master did not credit the complainants, in the account of rents received by them from the property, with taxes paid by them on Dr. Taylor's individual property. They are entitled, in their account of rents and profits, to an allowance for any taxes paid by them for the property held in common during the time of their possession of it.
      Dr. Taylor is entitled, in his account, to an allowance of the money paid by him, while he was in exclusive possession of the property, for necessary repairs to it.
      Both the complainants and the defendants except to the report, on the ground that the master has reported that the property cannot be divided without great prejudice to the owners, and they agree that it can be divided into the requisite number of shares without prejudice.
      The defendants except on the ground that the master has reported that part of the property designated as "the pasture lot," which lies between the westerly line of Dark lane and the feeder, as part of the property of which William Smith died seized. The order of reference directed him to "take testimony and examine the pleadings and evidence used before the chancellor on the hearing of this cause, as to the proper description of the land and premises in the bill mentioned, and of which William Smith died seized, not covered by the Cadwallader mortgage or by the Swift mortgage." The "pasture lot" was never, as far as appears, owned by William Smith. The bill, indeed, does allege that it was owned by him. It does not allege that the complainants lay any claim to that part of that lot which is south of Dark lane. The solicitor, by whom the bill was drawn, says, in his testimony before the master, that he did not discover the fact that that part of the pasture lot was not included in the description in the bill, until after the final hearing of this cause in this court. The master was in error in including that part of the lot in the description of the land to be partitioned. It is not embraced in this suit. The first and second exceptions of Dr. Taylor, therefore, are sustained.
      The third exception has reference to the part of the "pasture lot" which is embraced in the suit, and which was not covered by the Swift mortgage. The objection is, that the master, in establishing a description of it, did so without competent evidence; that a survey of the property should have been made, and the result laid before the master as evidence. I cannot, from anything that appears, adjudge that a survey was necessary. The exception will be overruled.
      The fourth exception is in reference to two other lots which the master has merely described by reference to the city atlas of Trenton, on which they appear to be laid down. He should have reported a description of these lots.
      The fifth exception, which is to the report that the property cannot be divided without great prejudice, has already been disposed of in passing upon the exceptions of the complainants.
      By the sixth exception, objection is made because the master, in fixing the amount for which Dr. Taylor is to account, in respect of certain rent received by him from John Kennedy, has made no deduction or allowance in respect to the share of his wife, who is one of the tenants in common. In this, the master has erred.
      The seventh exception, that the master erred in charging Dr. Taylor with rent received from Mrs. Cornell, at the rate of $60 a year, whereas he only received rent from her at the rate of $55 a year, is well taken.
      The eighth, which is based on the non-allowance of $50, which, it is alleged, were allowed by Dr. Taylor to Pashley, as tenant of part of the property, is not well taken. It does not appear, from the evidence, that Dr. Taylor made any allowance to Pashley for repairs to those premises.
      The last exception was not presented for decision, it being suggested, by the counsel of the parties, that they could agree in reference to the matter which is the subject of it.
 

"Reports of cases decided in the Court of Chancery, the Prerogative Court and on appeal in the Court of Errors and Appeals of the State of New Jersey" by John H. Stewart, Vol.III; (spine title: New Jersey Equity Reports - 30 - III - Stewart); "New Jersey Equity Reports" Vol.30, pgs.467 to 470 (California State Law Library, Sacramento, 3/2004)
      ISAAC BARNES and others v. JOHN L. TAYLOR and others; Court of Chancery of New Jersey; 30 N.J. Eq. 467; 3 Stew. 467; February, 1879, Decided.
      On order to show cause why defendant John L. Taylor should not be required to pay the amount (not exceeding the amount by the decree ordered to be paid to the complainants) for which the complainants' solicitor claims to have had a lien upon the decree for his disbursements and costs. On affidavits and exhibits.
      [opinion] THE CHANCELLOR. By the final decree in this cause, the defendant, Dr. John L. Taylor, was ordered to pay certain moneys to the complainants within a time therein limited. Mr. Dillaye, the solicitor of the complainants, served a copy of the decree on Mr. Aitkin, the solicitor of Dr. Taylor, with a notice endorsed thereon and signed by himself as solicitor, that he had a lien upon the moneys therein directed to be paid. Notwithstanding this notification, and in disregard of it, the entire amount of the money was, without Mr. Dillaye's consent, paid over to the complainants. Mr. Aitkin testifies that in conversation with Mr. Dillaye on the subject, after the copy of the decree was served, he urged the latter to take action, such as he might deem proper, by obtaining the consent of his clients, or otherwise, to prevent the payment of the money by Dr. Taylor to the complainants, who were, by other counsel, pressing for payment thereof to them, and insisting that Mr. Dillaye had no just or lawful claim thereon. He further says that Mr. Dillaye promised to take such action, and, in view of the fact that he was about to leave town for a few days, but expected to return on the following Tuesday or Wednesday, requested that the money should not be paid over to the complainants until after his return; that he acceded to the request so far as to agree not to pay over the money before Wednesday. He says that he then told Mr. Dillaye that if he could not get the matter settled with his clients, he had better get an order that the money be paid into court, as, from the form of the decree, and what the complainants had said to him, the money could not be paid to Mr. Dillaye. Mr. Dillaye did not return home on Tuesday or Wednesday. On the latter day the complainants appeared and demanded payment from Mr. Aitkin. They informed him that they had endeavored to find Mr. Dillaye, but were unsuccessful and were unable to ascertain when he would return. He thereupon postponed the payment until the following Friday. He says that on that day, Mr. Dillaye not yet having returned and neither he nor his client having heard anything from him, he having satisfied himself that there was nothing due to Mr. Dillaye, as solicitor or counsel, from the complainants, paid over the moneys to them on their receipt.
      It appears to me to be quite clear that that payment, so far as Mr. Dillaye's lien is affected by it, cannot be allowed. Dr. Taylor had notice that Mr. Dillaye claimed a lien, as solicitor, upon the money which, by the decree, he was required to pay. The notice was of itself sufficient reason for his refusal to pay the money to the complainants, and if, when they notified him not to pay it to Mr. Dillaye, he was embarrassed by the conflicting claims, he might readily have obtained permission to pay the money into court, or he might have refused to pay it to either until the question between them in reference to it was settled. He was not required to adjudicate upon the claim of Mr. Dillaye, nor was it proper for him to assume to do so. It was enough for him to know that Mr. Dillaye claimed a lien, to justify him in refusing to pay the money to the complainants. When he paid over the money on the assumption or conviction that nothing was due to Mr. Dillaye as solicitor, he incurred the risk of paying him whatever (not exceeding the amount paid to the complainants) he might prove to be due to him under his lien. The court will protect the lien of the solicitor under such circumstances.
      There was nothing in the form of the decree to justify the payment in disregard of the notice. The money payable to all the complainants except Mrs. Paxson was, by the terms of the decree, payable to them or their solicitor. The directions as to that which was to be paid to her, was that it be paid to her. If there had been no direction to pay any of the money to the solicitor, it would not have justified the payment to the complainants in disregard of Mr. Dillaye's rights. There will be a reference to a master to ascertain the amount for which Mr. Dillaye, as solicitor, was entitled to a lien. He claims, also, to have been, and still to be entitled, under a stipulation between him and his clients, to one-seventh of the amount which Dr. Taylor was decreed to pay, and, in his affidavit, he says that he exhibited the stipulation to both Dr. Taylor and Mr. Aitkin, and informed them of his rights and demand thereunder. They both deny, however, that he informed them of this claim, either by showing the stipulation or otherwise. The stipulation is entitled in the cause. It states that the decree for partition has been made; that the complainants have, in pursuance of the contract with him, conveyed to Mr. Dillaye one-seventh of the land recovered by them, and they thereupon stipulate that, in making the partition, his seventh may be set off to him, and that one-seventh of the rents and profits received by Dr. Taylor for the six years prior to the commencement of the suit, be set apart to Mr. Dillaye; and it further provides that the stipulation may be entered in the cause, and that for that purpose Mr. Dillaye may be made a party to the suit. If the money thereby assigned to him was money due him for his services as solicitor in the cause and his disbursements therein, his lien will cover it.
 

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