Buttlar v. Buttlar

Full title: BUTTLAR v. BUTTLAR.

Court: COURT OF CHANCERY OF NEW JERSEY

Date published: Jan 11, 1904

67 N.J. Eq. 136 (Ch. Div. 1904)

67 N.J. Eq. 136

Opinion

01-11-1904

BUTTLAR v. BUTTLAR.

Marshall W. Van Winkle, for complainant. John I. Weller, for defendant,

PITNEY, V. C.

Bill by Christian Buttlar against Mina Buttlar for petition. Decree for plaintiff.

Marshall W. Van Winkle, for complainant.

John I. Weller, for defendant,

PITNEY, V. C. The facts displayed and the questions arising on the pleadings may be briefly stated as follows: In the year 1894 the complainant and defendant, being husband and wife, were seised in a joint estate of two parcels of real estate in Hudson county; one on Ma lone street in the town of West Hoboken, and one on First street in the city of Hoboken. At that time they entered into a contract in writing for separate living, dated January 31, 1894, and printed in extenso in 57 N. J. Eq. 650, 42 Atl. 755, 73 Am. St. Rep. 648. The effect of that contract was to give the husband the rents and profits of the premises in question during his natural life, and to put him under obligation to pay his wife the sum of $75 per month. The length of time such payments should continue is not mentioned, but the wife agreed to take such sum in full satisfaction of all support and maintenance and all alimony whatsoever. Some time subsequent to the decision of Buttlar v. Buttlar, complainant brought an action against' defendant for divorce on the ground of desertion, to which she filed a cross-bill against him for divorce on the ground of adultery, with the result that on March 24, 1902, a decree for divorce on the ground last mentioned was made in favor of the defendant and against the complainant, which contains a reservation of the right of the defendant to apply for permanent alimony. Whereupon, on the 25th day of March, 1902, the complainant served upon defendant a paper in which he declared that he rescinded the contract above mentioned, stating, among other things, as ground for his rescission, that the agreement was made between the parties while they were husband and wife, and in consideration of that relationship; and, further, because the agreement was made in consideration of the real estate being held between the parties by the entirety, which particular estate had been determined by the decree of divorce. On May 6, 1902, complainant filed his bill against defendant for a partition of the two pieces of property above mentioned on the ground that the estate of the parties had been changed by the decree of divorce to an ordinary tenancy in common. No mention is made in the bill of the agreement above mentioned, and no relief is prayed against it. The defendant, by her answer and cross-bill, admits in substance all the facts above stated, and that the premises in question are now held between the parties as tenants in common, as the result of the divorce. She sets up in defense of the partition the contract of January 31, 1894; allegesthat the same is still in force between the parties, and that by reason thereof the lands are not now subject to partition between the parties.

Thus far the questions raised by the pleadings are almost entirely of law. But the defendant proceeds by her cross-bill to set up what she claims to be an equitable title to all the premises, and for that purpose she goes into the history of the married life of the parties from its inception, in which she sets up facts and circumstances tending to show, and she charges the truth to be, that the property in question was all purchased and paid for with her individual funds, and that complainant, having no beneficial interest therein, compelled her by threats to have the title vested in their joint names, and asserts that under the circumstances he holds the title to the equal undivided one-half part thereof, standing in his own name, in trust for her, and prays a decree to that effect. All the facts upon which this theory is based are denied by the complainant in his replication, and in it he points out and claims that the contract of January 31, 1894, was rendered inoperative and of no binding effect by the decree of divorce and by the notice of rescission thereof. That the effect of the divorce was to destroy the estate by the entirety was admitted not only in the answer of the defendant, but in the argument, and seems to be the result not only of the authorities, but of sound reasoning.

The effect of the divorce upon the contract of January 31, 1894, raises a question of more difficult solution: First. Is it still binding? Second. Does it give the wife an equitable lien upon those premises? But laying aside, for the present, the first question, let us look at the next question—whether the contract of January 31, 1894, gives the defendant any lien, legal or equitable, on the interest of the complainant in the property in question for the monthly payment provided for therein. The language is that the defendant, in consideration of the covenant of the complainant to make to her the monthly payment of $75, "does hereby agree to and with her said husband that he shall be entitled to receive, during the term of his natural life, all the rent, income, and profits of the property." Now, the right which the wife had to give in those premises was settled in the case of Buttlar v. Rosenblath, reported in 42 N. J. Eq. 651, at page 657, 9 Atl. 695, 59 Am. Rep. 52. The wife has simply a right to one-half of the rents and profits, and those, and those only, she pledged to her husband. That right the complainant has deliberately renounced both in the written rescission, to which reference is above made, and also in filing his bill for partition. I am not aware of any authority for the proposition that a tenant in common of an equal undivided share in lands, who also holds an incumbrance on the other share, cannot prosecute a suit for partition where he waives his lien upon the other share. I can find nothing in the agreement of January 31, 1894, which gives the defendant any lien upon complainant's share for the monthly payment provided therefor. I think that the existence of the agreement, even if the complainant has by it a continuing lien upon defendant's share to secure his liability thereunder, furnishes no defense to his suit for partition. He prays no relief against it, nor does he pray in the alternate that, if it be held binding upon him, he is entitled to a lien upon defendant's share to protect himself against it. This view renders it unnecessary to determine whether the complainant's obligation under that agreement has been discharged by the divorce obtained against him by defendant. It may be observed, however, that the general rule is that no vested interests are disturbed by a decree of divorce unless the instrument under which the vesting occurred provides therefor. Dixon v. Dixon, 23 N. J. Eq. 316; Id., 24 N. J. Eq. 133; Lister v. Lister, 35 N. J. Eq. 49; Charlesworth v. Holt, L. R. (1873) 9 Excheq. 38; 2 Bish. M., D. & S. § 1654 et seq.

One ground upon which complainant relied in argument as to the validity of the contract was that, being himself about 59 years old and defendant about 66 years old, his right of survivorship arising out of the estate by the entirety had a distinct value, and that this valuable right was destroyed by the action of defendant. The principal contest between the parties was that raised by the defendant setting up an equitable title to the whole fee of the premises in question. To this counsel for complainant pointed out in argument as a complete answer that the defendant, by entering into the contract of January 31, 1894, and now still asserting its validity, distinctly ratified and affirmed the title of the complainant in the premises. Perhaps I might rest the case on that point alone, or perhaps I might decide it in favor of the complainant on the merits, and give as my reason simply that I had gone through the evidence carefully, and had come to the conclusion that the defendant's case wholly failed, and say that, while I found both parties to be industrious, thrifty, and saving, and to have contributed as such people under such circumstances usually do in proportion to their several ability to the little fortune accumulated by them, and while the complainant distinctly declared that defendant had been during nearly the whole of their married life a faithful, economical helpmeet, and that he was entirely willing that she should have one-half of his property, yet 1 found, as a matter of fact, that the complainant was an unusually energetic man, and possessed of unusually good business judgment in business affairs, and was the principal creator of the fortune. Nevertheless, I deem it my duty to state somewhat in detail the result of my study of the evidence. The parties, who are both natives of Germany, were married in the early part of1872. Complainant was then a widower about 27 years old, with no children. The defendant was then 34 years old, twice a widow, and had no children. Both were laborers. Complainant was a journeyman baker, and defendant, as complainant states, was a washerwoman, and defendant states she also did sewing. Their pecuniary condition is indicated by copies of their several savings bank accounts, which are produced. The defendant's commencing in 1866, and ending September 30, 1872, in one savings bank, shows divers deposits made by her on different occasions during the intervening years ranging from $10 to $50, and drafts therefrom in sums ranging from $10 to $100. So that in January, 1872, just before she was married, she had about $150 to her credit, and on the 15th of that January she drew $50, and on the 30th of September, 1872, she drew $102.71, her complete balance. The complainant had to his credit at the time he was married $15.22, which he then drew. Then we have an account in their joint names, commencing in July, 1872, by a deposit of $50, and by a deposit on September 28, 1872, of $100, and drafts against it in January and February, 1873, of $192.85. During the first year of their married life the complainant earned his living as a journeyman baker. Toward the latter part of that year he borrowed of one Drewitz, a colaborer, $140 or $150, and joined that with $102.71 taken from his wife's individual bank account and moneys which he had saved from his wages, and purchased a bakery establishment in Brooklyn at the price of $600, paying down $300 and giving a chattel mortgage for the balance. This business was a success, as their joint savings bank account shows, and as was admitted by the defendant. Complainant repaid Mr. Drewitz the money he had borrowed from him, and also paid the chattel mortgage and had money left; all in two years' time. The proof is clear that he himself worked very hard, with Drewitz as an assistant; that he spent his nights in baking bread, and part of his daytime in baking cake, and also in delivering his bread to his customers, carrying it on his back. At the end of about two years he sold out his business for about $600, and in March, 1875, took a steerage passage to Germany and back, and brought his sister with him at an expense of about $200.

Just here comes the first clash of evidence between the parties. The defendant swears that when they were first married she was possessed of about $550, partly in a savings bank and partly loaned out. This is denied by complaniant. I think the documentary evidence of the bank accounts, supported by the evidence of Mr. Drewitz, apparently a reliable witness, supports the statement of the husband, and flatly contradicts that of the wife. There is not only nothing in her bank account, to which reference has already been made, to indicate the possession by her of any such sum of money, but the contrary. And then we have the undoubted fact that both their savings bank accounts were exhausted, and $150 borrowed from Drewitz, and a chattel mortgage given in part payment for the bakery, in order to enable them to make their first start in business. Now, as they were then living in perfect accord, and both anxious to get on in the world, it seems highly improbable that they would have borrowed money and given a chattel mortgage if the defendant had been possessed of a sum which she now swears she had within easy reach. One other claim of the defendant may as well be dealt with at this moment. In addition to the sum of $550 which she says she was worth at the time she married the complainant, she swears that in the year 1874 she received $860 in two payments of $500 and $300 on the death of a relative in Germany. She gives the name of the person through whom she received it, who cannot now be found, and in support of it she brings a statement from the Williamsburg Savings Bank, received in evidence as if proven, showing that she deposited in that bank to her individual credit on November 8, 1875, $500, and on January 5, 1876, $360, making a total of f 860, which amount was drawn out on the 22d of April, 1870. The defendant's account of her receipt of this money is as follows: On direct examination she says: "Q. What property had you, if any, when you were married? A. $500. Q. by the Court: Where was it? A. Part in the bank and part loaned out. Q. Where did you get it from? A. I got it from home. Some of it I saved myself. I had some in the Canal Street Bank. Q. During the time you ran the Brooklyn bakery, did you receive any money from home? A. Yes, sir. Q. How much? A. $860. Q. by the Court: Dollars or marks? A. Dollars. A. man name Kern paid me it, and never gave me any paper for it. He only paid me that money out." Further on she says it came from relatives in Germany. On cross-examination: "Q. How much money did you get from the other side? A. First? Q. No, altogether. A. $850 and $144 and $500, first, I couldn't reckon it at first. Q. Those three times? A. Three times. Q. by the Court: I understood only two times? A. I had that from home, $500. $300 I brought when I came back three months before I married Mr. Buttlar, and when I came here first I had some saved." Further on she said on the subject of this money: "I had $850 by Mr. Recht. Q. Where was it? A. By loan in Williamsburg, by a man name Recht, loaned out to a man name Recht. Q. Had it loaned out to a man name Recht? A. Yes, sir. Q. $850? A. No; he hadn't it all. Q. How much did he have? A. He had $600. Q. That is, Recht had $600? A. Yes, sir. Q. Where was the other money? A. The other money—where? Q. You can't recollect this moment? A. I can't recollect this momentthat name, no. Q. You had money at that time in the bank, but you had money loaned out to the amount of $850? A. Yes, sir." Further on she says again that she had $850 loaned out. In point of fact she received about $140 from abroad several years afterwards, while living in Hoboken. And in the Rosenblath Case, the evidence in which was admitted by consent of the parties for use in the present case, the defendant swore as follows: "Well, I had some money when I married my husband. Q. That you got from home, I suppose? A. I had that from home. I had that long before. I always had it, and I had a comfortable home, too. Q. How much was that? A. $550. Q. Then did you get any money afterwards? A. About two years after I married my husband I had $860. Q. When did you marry him?. A. In 1872. Q. And two years afterward you got $800 more? A. Yes, sir. Q. Where did that come from? A. That came from my parents at home. Q. By whom was that paid to you, or through whom? A. By a man who had an office in 18 First street, Sir. Kern. Q. New York? A. Yes, sir. Q. Have you ever been over there to find this man? A. I have. Q. Lately? A. Yes, sir. Q. What did you find became of him? A. I found that he failed, and was not there any more." Further on, upon cross-examination, she swears that she had $800, which she received from Europe, and $550, which she had when she married her husband; and she swears that that money came from home in 1874; and she swears that the money she got from home she put in the Williamsburg Savings Bank, and that it was $860. She further swears that she had at one time $600 in the Fourteenth Street Savings Bank, which was the one in which she kept her first account which I have mentioned above.

Now, as soon as the parties began to have a little money they kept joint savings bank accounts, one in the name of Christian and Mina Buttlar and one in the name of Christian or Mina Buttler, so that either could draw it it appears that an account was kept off and on for several years in the German Savings Bank of the city of New York, and sometimes a small account in the German Savings Bank of the city of Brooklyn, and part of the time part of the moneys were in the Williamsburg Savings Bank. The account in the German Savings Bank of New York commenced on September 8, 1873, and ended May 15, 1875, and amounted to $961. Another in the German Savings Bank of Brooklyn in 1873, while conducting their first bakery in Brooklyn, amounted to $200. Another in the same bank in Brooklyn in the year 1875 amounted to $250. Another concurrent account in the joint names was kept in the Williamsburg Savings Bank, and ran from March, 1874, to January, 1876, and amounted to $821. Now, after the complainant returned from Germany in June, 1875, he started another bakery in Brooklyn, and ran it for a few months, and then, finding ho was losing money, turned it over to his wife, who subsequently sold it out some time in the fall or early winter of 1875. Now, I find there was drawn from the German Savings Bank of the City of New York on the 15th of May, 1875, $301.98 from the joint account, and from the joint account in the Williamsburg Savings Bank on the 15th of May, 1875, $370.71; both drawn in the spring or summer before the deposit of November 9, 1875, of $500, to the credit of the defendant individually in the Williamsburg Savings Bank; and in this connection the complainant swears that be found that his wife was putting money in her individual name in a savings bank about that time. Then we find that on the 5th of January, 1876, there was drawn from the joint account of Christian and Mina Buttlar in the Williamsburg Savings Bank the sum of $300.58, and there was credited to her individual account on the same day in the Williamsburg Savings Bank the sum of $300, being precisely the sum which she drew on the same day from the joint account of both parties in the same bank. Now, that joint account showed deposits in small sums of from $100 to $228, and neither in that nor any other of the several savings bank accounts which they kept was there any place where either $500 or $300, which she swears she received from Germany during that period, was deposited at any one time, except the $300 just mentioned, which was a mere transfer from the joint account to the individual account. Hence I am unable to credit the defendant's statement that she received $800 from her friends in Germany.

Further, she swears that the first bakery that was kept in Brooklyn was conducted in the joint names. Against this is positive proof of third parties that the name on the glass door in the interior of the store was Christian Buttlar, and that the business was conducted in his name. The defendant admits that the second bakery that they had in Brooklyn (June to December, 1875) was conducted in complainant's name, and that he turned it over to her in her own name. It is an admitted fact in the case that at the time that the Brooklyn store was sold out, some time before the 1st of January, 1876, they had between them a considerable sum of money—between two and three thousand dollars. The immediate occasion of the change in the Brooklyn store was that the complainant was running behind in his business, and was badly advised by a friend to put his property out of his hands in the name of his wife, and about that time the large deposit of $500 was made in the defendant's individual name in the Williamsburg Savings Bank. Complainant turned back to the flour merchant all the flour he had on hand, and the debts that he owed were trifling, and were afterward paid in full, dollar for dollar; but the turning over the businessto the wife and her selling it out about the time the deposit of $500 was put to her individual credit in the Williamsburg Bank is significant in connection with the fact that the whole maneuver by the husband was for the purpose of hindering and delaying his creditors. The parties then—January, 1876—moved to Hoboken, and the complainant worked for a while as a journeyman baker, and then they purchased a plant and started a bakery about May 1, 1876, in First street, Hoboken, which they conducted for over a year with great success; the defendant performing her duties as a wife, and also attending the retail of goods from the shop and rearing her young children, and the complainant, as before, working very hard, attending very closely to his duties, and managing it with great skill and ability. In 1877 they sold out the store in Jersey City, and it is agreed that they had then accumulated considerable money—a little over $4,000. They then went with their two children to Europe, and lived in the town of Trefort, where the husband engaged in business as a hotel keeper. His wife says they lost money. He declares they made a little money. He took with him over $4,000, including a draft which he carried from the man to whom he sold the Hoboken store upon a relative in Germany who owed him. But the Trefort business was not as profitable as had been the bakery business, and after two years they returned to the United States, and in 1880 they started a bakery, which they conducted for a little over a year, when, on October 12, 1881, they bought a piece of property known as the "Clinton Street Property," taking the title in their joint names; it being the same property in question in Buttlar v. Rosenblath. 42 N. .1. Eq. 651, 9 Atl. 695, 59 Am. Rep. 52. It cost, after it had been improved, $12.000—$5,000 on mortgage and $6,000 in cash and a promissory note for $1,000. It consisted of two four-story tenements, and produced a remunerative rent. Afterwards—a year later?complainant, not being engaged in any prosperous business, started a bathing establishment at Coney Island, and for that purpose borrowed $200 from Mrs. Rosenblath, but bought the plant of another party, one Busch, giving him a note for it. Being dissatisfied, and charging that he had been cheated by (Mr. Busch) the vendor of the plant, he very foolishly, and, I may add, wickedly, attempted to compel the vendor to make an abatement in his price by putting his property out of his hands, and for that purpose conveyed the Clinton street property, through a third person, to his wife, whereby she became the owner of the complete title. Mrs. Rosenblath, being incited by Mr. Busch, sued on her note for money loaned, and tested the validity of the transfer to the wife, and it was set aside by the court as made in fraud of creditors. On the trial of that cause the defendant testified very much as she did in this cause as to the details of the origin of the money that bought the property, claimed all the credit for the earnings of the parties, swore, as we have seen, to having $550 when they were first married, putting it in the first Brooklyn bakery, swore to having received $860 from relatives in Germany in 1874, and that she was the meritorious originator and creator of their wealth; and the complainant in a general way supported her story, and that support is now set up by the" wife against him in this cause. In now denying the truth of her story as given in the Rosenblath Case he is contradicting his own evidence given in that case. Complainant frankly admits this, and that he did not testify to the truth in that case; but be also swears that his wile did not testify to the truth in that case. Now, so far as the solution of this case depends on her testimony, the question is not whether he testified falsely on that occasion, but whether she did. If she testified falsely there, she also testified falsely here, and I am satisfied from all the circumstances and documentary evidence in the case that she did testify falsely then as to the origin of this money, and has repeated that falsehood in the present case. This vesting of the complete title in the defendant was the occasion of the first serious difficulty between these parties. From that time on the defendant seemed to have conceived the idea of keeping the property all to herself and to give complainant nothing. He set himself about recovering the title. The few dollars that he owed arising out of the Coney Island investment were all paid. In September, 1886, be, together with a man named Witte, bought the property known in this case as the "First Street Property" in Hoboken. Title was taken in the name of Mrs. Witte and the defendant. Witte was insolvent. Little or no money was paid, but a mortgage for $3,000 was assumed. Upon that premises' complainant and Witte erected a cheapish wooden building for the purpose of carrying on a horse feed store, and did together carry it on there. Complainant undertook the management of the business, and was successful. After about 18 months he bought out his partner, and the title became vested in the defendant, but she was induced by complainant in November, 1889, to convey the property, through one Riebold, to the complainant and defendant jointly. That business was a success and complainant made considerable money, which was expended in the ordinary way for the benefit of his family, and what was not so spent was saved, and used in building on the West Hoboken property. The defendant sets up what I may safely say is the preposterous idea that she was the meritorious party in that feed business, and that she furnished the money, and that she hired complainant as a mere employe to manage it for her. Now, the incapacity of the defendant tomanage such a business is apparent. She took little or no part in it, even when the title stood in her name. So far as merit is concerned, her husband was the meritorious creator of all the profits from that store. Besides, it abundantly appears that in all the several different enterprises, baking, selling horse feed, etc., in which they were engaged, the goods were purchased on the credit of the complainant. Then about the same time that the title to the First street property was vested in the two jointly, complainant negotiated an advantageous sale of the Clinton street property for cash, and induced his wife to join in the conveyance. The object, as he now avows, was to make use of the opportunity to get in his own hands one-half of the net proceeds; and when the deed was delivered he attempted by manual dexterity to accomplish this result, and failed, the wife obtaining every dollar of the net proceeds (except about $500), amounting to about $12,000, placing $10,000 of it to her individual credit in the First National Bank of Hoboken on December 7, 1889, and the balance in her individual name in a savings bank. The complainant" then immediately made a bargain for the purchase of the four West Hoboken lots which faced on Malone street, and induced his wife to pay for the same, and have the title taken in their joint names. This she appears to have done, and to have drawn for that purpose $3,300 cash, part of the proceeds of the Clinton street property. The title of this was taken in their joint names, and is the principal part of the property here in question.

Complainant immediately entered into a contract with a builder to erect five dwellings on the four lots, and they were paid for from time to time between the date last mentioned and the 22d of April, 1900, partly by the wife out of the proceeds of the Clinton street property standing to her credit in the bank, partly by the complainant out of the earnings of the feed business which he was still carrying on. The counsel agreed that the total cost of the four lots with the buildings thereon was $22,000, which was paid as follows: Mortgage, $0,000, feed business, $6,000, and paid by the defendant out of the proceeds of the Clinton street property, $10,000. Then, in April, 1890, complainant purchased a lot adjoining the first four mentioned, and facing upon West street in West Hoboken, from the same party, and had the title vested in himself and his wife, and paid for it out of the feed business. Subsequently he bid off at auction three other lots facing on West street, and immediately adjoining the one last mentioned, and notified his wife of the purchase, and she acceded to it, and by his direction attended at the time and place fixed to accept the deed and pay for the lots. This she did, but, without his knowledge and consent, had the title made to herself individually. She now owns those three lots, and has erected thereon a dwelling house, the whole being of considerable value—nearly $5,000—all from the proceeds of the sale of the Clinton street property, and such savings as she was able to make from time to time out of the rents thereof. The defendant alleges and swears that she was induced to pay the money for the West Hoboken property and have the title vested in the joint names by the threats and coercive conduct of complainant. I have no doubt that complainant did use every artifice and every means that he could think of to induce defendant to reinvest their earnings in their joint name; but I am not satisfied that there were any means used which entitled this defendant now to claim that the whole proceeding was not, in effect, her voluntary act. The original investment of $3,300 in the West Hoboken property in their joint names was comparatively trifling, but after the complainant had entered into a contract to build thereon she drew moneys from her bank account on divers occasions from time to time extending over a period of several months to pay for that building. Surely she was not under coercion the whole of this time. And then, when the fourth lot was purchased and paid for by complainant, he voluntarily put the title thereof in their joint names. The fact is that it was but an act of simple justice for her to reinvest complainant with the joint title. The net result is that the two properties here in question are held between the parties in equal share, and the defendant has, beside her share therein, nearly $5,000 worth of property which came from the same source as the properties here in question, so that she has and must continue to have much more than an equal one-half of their joint earnings.

The evidence shows clearly three matters: First. That the source of the money was threefold: profits in the bakery business, profits in the horse feed business, and profits on the judicious investments of money in real estate. For all these the complainant is entitled to the principal credit. Second. That from the start up to the time that the Clinton street property became vested in the name of the defendant alone the complainant handled all the money, and had every opportunity to place it to his own credit in bank, but voluntarily placed it to the joint credit of himself and defendant. Third. The defendant repeatedly, in the course of her evidence, testified that the reason why she resisted, as far as she did resist, complainant's entreaties to reinvest the property in their joint names, was that she was afraid that he would run in debt and be sued, and that she would be obliged to pay it, as she had the Rosenblath debt. She nowhere, when off her guard, put herself on the ground that she was the meritorious owner of the property.

The fact that the property once held bythe parties jointly was voluntarily conveyed by the complainant to defendant for the purpose of hindering and delaying complainant's creditors does not prevent a court of equity from favoring its return to the original owner. I had occasion to express my views on this subject in the case of Pitney v. Bolton, 45 N. J. Eq. 639, 18 Atl. 211, at page 643, 45 N. J. Eq., page 212, 18 Atl. The language 1 there used was that "our innate sense of justice is always gratified when we find the rules of equity as applied to any particular case squaring themselves with what is honorable and just between man and man"; and I cited as an illustration the case of Davis v. Graves, 29 Barb. 480, which was this, in brief: A debtor, desiring to binder and delay his creditors, conveyed his property to a third party, who held it for a considerable time as a fraudulent grantee. Subsequently the fraudulent grantee became himself considerably indebted, and, in order to prevent his creditors from seizing on the property held in trust by him for the fraudulent grantor, reconveyed it to the fraudulent grantor, and the court refused to assist the creditor of the fraudulent grantee in applying the property so conveyed back and forth to the payment of the debt of the fraudulent grantee. The decision in the case against Bolton was affirmed in the court of appeals for the reasons given by me in the court below. Bolton v. Pitney, 46 N. J. Eq. 610, 22 Atl. 56.

My conclusion is that the defendant's cross-bill is without merit, and must be dismissed, with costs, and that the complainant is entitled to a decree for partition. I will advise a decree accordingly.