Lillis v. Gallagher. child shall have attained to majority (the contingency on which the issue are to take by substitution, and on which the gift over to survivors is to take effect), never can happen. The interests of the children are therefore vested absolutely. They and their mother may join in the disposition of the fund in question, and with their consent (already given in their testimony) the fund may be invested in building on the lot before mentioned. The building may be erected by the executors, who will be empowered to use the money for the purpose. The executors and the widow and children can probably agree as to the character and cost of the building. MARTIN D. LILLIS v. ALEXANDER GALLAGHER et al The complainant recovered a judgment at law against the defendant's brother for false imprisonment, and afterwards filed a creditor's bill to set aside, as fraudulent, two conveyances of lands by the brother to the defendant. The evidence showed satisfactorily that the lands in question, in fact, belonged to the defendant, although the legal title thereto had been in the name of his brother.-Held, that, as the cause of the action at law had been a tort, there was, against the defendant, no ground of estoppel such as sometimes exists where the cause of action is founded on a contract, and the credit has been given under the belief that the debtor was the true owner of the property, of which he had the legal title only, but not the equitable title. Bill for relief. On final hearing on pleadings and proofs. Mr. E. D. Deacon, for complainant. Messrs. Henry & Dickinson, for defendants. THE CHANCELLOR. Lillis v. Gallagher. This is a creditor's bill. Its object is to subject to the payment of the complainant's judgment against the defendant, Alexander Gallagher, certain real estate in Jersey City, which the latter, with his wife, conveyed to his brother, Joseph Gallagher, the other defendant, September 27th, 1883. The property in question consists of two houses and lots. It was bought by Alexander, and the title taken in his name. One of the properties was conveyed to him in 1868, and the other in 1876. The complainant's judgment was recovered in an action for damages for false imprisonment. It was entered January 23d, 1883, for $550.68 damages and costs. The summons in the suit was issued September 21st, 1882, and served on the 26th. The conveyance of the two properties by Alexander and his wife to Joseph was made, as before stated, on the 27th, the next day after the summons was served. Alexander was, when the imprisonment for damages, for which the judgment was recovered, took place, a policeman in Jersey City, where he lived, and the imprisonment occurred while he was on duty as such officer. The complainant alleges that the properties both belonged to Alexander, and that the transfer thereof to Joseph was fraudulent, and designed to defeat, hinder or delay him in collecting the judgment he might recover in his suit, which had then been begun. The defendants, on the other hand, allege that Alexander, though he held the legal title to the properties, never was the equitable owner thereof; that he held them subject to, and upon a resulting trust in favor of Joseph, at whose request, and for whom they were bought, and who paid all the purchasemoney. Both testify that Joseph furnished all the money for the purchase of the properties, and that they were bought for him, by his direction, by Alexander, who held them for him on an understanding between them that he was to hold them for Joseph, and convey them to him on demand. Alexander managed the properties, collected the rents, paid the taxes &c. &c., and accounted to Joseph. He made repairs, but only by Joseph's direction. Joseph was and is unmarried, and has boarded with Alexander all the time, as he still does. In all. Sharp v. Wyckoff. things Alexander recognized Joseph as the owner of the properties. Since they were bought, Joseph has bought other real estate in Jersey City, and Alexander now lives in another house, not one of those in question, also owned by Joseph, for which he pays him rent. Alexander has never had any money to invest. He says he has always worked for small wages, and he has had a family to support. He swears that in purchasing the properties he acted wholly as Joseph's agent, and by his direction, and that they were bought entirely with Joseph's money, and for him; that he took title in his name for Joseph, and at his request, and held it for Joseph, who, he says, allowed him something for his services in taking care of the properties for him. He says, also, that Joseph did not request him to convey them to him, but that he did it of his own accord, in order that they might not be made chargeable with his debts. While he was a man of no means, Joseph was prosperous, and had the money with which to buy the properties. There is no evidence to contradict their testimony, and there is no reason to doubt the truth of their statements. The cause of action having been a tort, the ground of estoppel, which is sometimes found in cases in which the claim is upon contract, and credit has been given on the belief that the debtor was the true owner of property of which he had the legal title only, but not the equitable title, is not found here. The bill will be dismissed, with costs. JOHN W. SHARP υ. MARTIN WYCKOFF et al. Where the insufficiency of proof is due to the inadvertence of counsel, a cause may be ordered to stand over, after final hearing, for the purpose of supplying the additional proof. Sharp v. Wyckoff. Bill to foreclose. On final hearing on pleadings and proofs. Mr. A. A. Clark, for complainant. Mr. H. B. Herr, for defendants Wyckoff and wife. THE CHANCELLOR. The defence is a tender by the mortgagor. The proof is defective. It does not show that the complainant knew or had reason to suppose, at the time the tender was made, that the person who made it did so for or in behalf of the mortgagor. After that time a demand was made upon the mortgagor, in behalf of the mortgagee, for the money due on the mortgage, and it is admitted that she could not, on that day, get it from the bank in which she had deposited it after the tender; but it does not appear when the demand was made-how long before the filing of the bill. The proof on the whole subject is meagre and insufficient. Application is made to add to it by re-examining the witnesses, or otherwise. In Beckmann v. Hoboken Bank for Savings, 10 Stew. Eq. 331, on appeal, the court of errors and appeals ordered that the proofs be opened to let in new testimony to establish the consideration of a deed successfully attacked in this court for fraud, although no application had been made in this court on the subject, and the applicant had been twice heard here. In the case in hand it seems that the insufficiency of the proof is due to inadvertence of counsel. The case will stand over for decision until after the additional proof shall have come in. Wiley v. Morris. DAVID WILEY, trustee &c., υ. WILLIAM MORRIS et al. A testator gave to his son (the defendant) all the implements, materials &c. in his oil-cloth factory, which were to be valued at cost, and sufficient money added to such valuation to make a total of $30,000. He then gave to trustees (the complainant) all the residue of his estate, to permit defendant to use and enjoy the land and buildings constituting his oil-cloth factory, without rent or charge, so long as defendant carried on the business alone, without a partner, the defendant to pay all taxes thereon and keep the works in good repair, make all improvements and keep the same insured at his own expense, otherwise the premises were to be sold &c. The defendant received the tools, stock &c., and also the money, which, added to the valuation, made up the $30,000. The factory itself was appraised at $14,000. The complainant expended $2,000 in finishing buildings which were unfinished at the testator's death. The cost of the factory, including that expenditure and the cost of the land, was $21,000. The defendant has complied with all the conditions of the trust relative to the taxes, repairs and insurance. He expended, prior to December 31st, 1881, $3,660 in new buildings and machinery and repairs. All the buildings were insured in the complainant's name as trustee. In 1881 one of the buildings, with the machinery therein, was destroyed, and portions of others of the buildings injured, by fire, and the proceeds of the insurance, about $6,000, were paid by the companies to the trustee, and were by him paid to defendant, who expended that and also about $18,000 of his own money in new buildings and machinery, built partly on the trust land and (as to one building) partly on his own adjoining land. The value of the buildings &c. on the trust property has been doubled by the defendant, and new buildings &c., including cost of land, worth $48,000, erected on his own property adjoining, and used by him in connection with the original factory, all of which have been insured by defendant in complainant's name. In 1884 the paint-shop was again burnt, and almost all the other buildings so damaged that manufacturing was suspended until after they had been repaired. The loss was adjusted at $29,000, and complainant has received thereof $21,000, and paid $11,000 to defendant, who has begun to rebuild, and in doing so has placed one of the buildings, in part, on his own land; but even if such part should be severed from the part on the trust lands, the latter would not be essentially impaired. The defendant's reasons for such location are to increase his facilities for business and to reduce the chances of loss by fire. - Held, that the defendant is bound to keep the premises insured to an amount equal to the original valuation of the trust buildings &c., and the value of the complainant's improve |