the junior mortgagee was not entitled to any priority as to such fund by securing the appointment.

Bill by the New Jersey Title Guarantee & Trust Company against Cone & Co. and another. Motion by complainant to appropriate money in the hands of a receiver to a deficiency after foreclosure sale. Allowed in part and refused in part.

Charles L. Corbin, for complainant. Charles E. Hendrickson, Jr., for defendant Feldmark.

PITNEY, V. C. The complainant filed a bill to foreclose a first mortgage on land, and made the defendant Mrs. Feldmark a party as second mortgagee. She applied to the court to appoint a receiver of the mortgaged premises, which was done. The order appointing is the usual one adopted in New Jersey, and does not indicate any disposition which shall be made of the moneys collected by the receiver. The defendant Feldmark did not answer, and no decree was entered in her favor, though it is not disputed that her mortgage is valid, and that she would be entitled to any surplus money over and above the amount due the complainant. At the time of the sale the premises were subject to two years' taxes, amounting to a considerable sum, and when sold were purchased by the complainant, and failed to produce enough to satisfy the complainant's mortgage by $80.77. The receiver has filed his report showing a considerable sum in his hands, and asks to be discharged. Application is now made on behalf of the complainant to pay, first, the deficiency on his mortgage, and, second, the taxes in arrear. This motion is resisted by Mrs. Feldmark, who claims that she is entitled to the whole of the fund in the receiver's hands.

With regard to that part of the motion which asks that the arrears of taxes be paid out of the fund in the receiver's hands, I think it must fail. The complainant's mortgage did not contain any clause authorizing it to pay taxes and add them to the mortgage; and, if it had contained such a clause, I do not wish to be understood as intimating that it would have made any difference in the present motion. Such a clause would probably be construed as simply authorizing it to increase the amount due on its mortgage by actually paying the taxes, and, without such actual payment before decree, no allowance can be made therefor. In the present situation the taxes were a lien upon the premises at the time they were purchased, and the complainant stands in the same situation in that regard as would a stranger purchasing the premises. I can perceive no right which the complainant can have to have the amount of that lien reduced at the expense of a junior incumbrancer. The presumption is that, if there had been no incumbrance for taxes at the time of the sale, the property would have produced just so

much more, and that increase in the product would have inured to the benefit of the junior incumbrancer. That part of the motion must be denied.

The other part of the motion, namely, to pay to the complainant the sum of $80, the deficiency due on its decree, stands upon an entirely different footing. I understand the general rule in New Jersey to be that, where a receiver of mortgaged premises is appointed in a foreclosure case, to which there are several parties claiming an interest in the premises, it is not usual to determine, at the time the order of appointment is made, upon what account the money received shall be applied, but to retain it to be applied as each party to the suit shall appear to be entitled at the final hearing of the cause. The mere fact that the receiver is appointed upon the application of the second or any subsequent mortgagee who is a party to the suit does not give him any superior right to the proceeds of the receivership. This was distinctly stated by Chancellor Williamson in his opinion in the case of Cortleyeu v. Hathaway, 11 N. J. Eq. 39, at page 42 (s. c., 64 Am. Dec. 478). He there says: "Where, upon the application of a subsequent mortgagee, a receiver is appointed, it is without prejudice to any prior mortgagee or other incumbrancer, and the receiver will be directed to keep down the interest upon the prior incumbrances;" citing authorities. In opposition to this doctrine the counsel for Mrs. Feldmark relies on a line of cases in the state of New York, the leader of which is Howell v. Ripley, decided by Chancellor Walworth, and reported in 10 Paige, 43. But a careful examination of that case does not sustain the defendant's contention. In fact, at the outset of his opinion Chancellor Walworth states the very doctrine laid down by Chancellor Williamson, in these words: "When a receiver is appointed in a suit, he is appointed for the benefit of such of the parties in that suit as it shall afterwards appear were entitled to the fund in controversy; but not for the benefit of strangers to the suit." In that case there were several successive mortgages, and a junior mortgagee filed a bill to foreclose his mortgage, without making any prior mortgagee a party thereto, and in that suit a receiver was appointed, who collected certain rents and profits. Subsequently the first mortgagee filed a bill to foreclose his mortgage, making the subsequent mortgagees parties, including the one who had filed a previous bill, and obtained an order in his suit appointing the same person receiver of the rents and profits who had been appointed in the prior suit of the subsequent mortgagee. The premises were sold under the decree of the first mortgagee, and the proceeds of the sale left a deficiency in his mortgage. He moved the court that the money in the receiver's hands should be applied to the payment of that deficiency. The court held that so much of the rents and profits as had ac

crued and been collected by the receiver prior to his appointment in the suit by the first mortgagee should go to the mortgagee who first brought suit, but that all that was collected after the receiver was appointed in the suit by the first mortgagee should go to him. He there discusses the rights of parties under such circumstances, and shows that, if a second mortgagee gets in possession, and receives rents and profits, he can hold those rents and profits for his own benefit until he shall be disturbed by a suit brought by the first mortgagee. The reason why the first mortgagee was not awarded the rents and profits which were collected by the receiver prior to the time the receiver was appointed under the first mortgagee's suit was that the first mortgagee was not a party to the first suit, and therefore not entitled to any benefit under it. The doctrine of that opinion was adopted by Vice Chancellor Van Fleet in Leeds v. Gifford, 41 N. J. Eq. 465, 5 Atl. 795. There the second mortgagee, before suit brought, had been let into possession by the tenant, and after foreclosure by the first mortgagee, and sale of the premises, leaving a deficiency upon his mortgage, the latter attempted to compel the second mortgagee to pay to him the moneys which he had received. He failed in that attempt for the reasons stated by the learned vice chancellor. The case of Howell v. Ripley, supra, was followed in New York by Post v. Dorr, 4 Edw. Ch. 412, where Vice Chancellor McCoun indulges in some dicta bearing upon the question; but an examination of the case shows that the question now under consideration was not involved. The next case in New York is Insurance Co. v. Fleischauer, 10 Hun, 117. That was a contest between two subsequent mortgagees, defendants in a foreclosure case. There a defendant, the holder of a fourth mortgage, in a suit to foreclose the first mortgage, moved (without notice to the holders of the second mortgage) for and obtained an order for a receiver of the rents and profits of the mortgaged premises "for the benefit of" the mover. After the property was sold, and the second mortgagees found that their mortgage was not reached by the sale, they moved the court to strike out the words "for the benefit of" in this order, and that the rents in the hands of the receiver be paid to them as holders of the second mortgage. This motion was denied in the court below, and affirmed in the supreme court on the ground that it was within the principle adopted in the decision of Howell v. Ripley, supra, and within the dictum of Vice Chancellor McCoun in Post v. Dorr, supra. The reasoning of the court in the case (10 Hun, 117) is not satisfactory to me, and I should decline to follow it if it were precisely in point, which it is not. The next case from New York is Ranney v. Peyser, reported first, in the supreme court, in 20 Hun, 11, and, on appeal, in 83 N. Y. 1. There, as in the case of Howell v. Ripley, supra, the second mortgagee had

filed his bill to foreclose without making the first mortgagee a party, and by the consent of the mortgagor had obtained an order appointing himself receiver, in these words: "That as such receiver he [plaintiff] have power, which is hereby given to him, to rent and manage said buildings and premises, and to rent the same, or any part thereof, from time to time, for terms not exceeding one year, to collect and receive the rents thereof, and out of the same to keep said buildings insured against loss or damage by fire and in repair, and to pay the ground rent and taxes." Subsequently the first mortgagee brought suit to foreclose his mortgage. The property was sold thereunder, the first mortgagee purchasing at the sale, and a deficiency was found, and he then applied to have the money collected go to the payment of the ground rent and taxes. On an appeal to the supreme court, Judge Barrett, speaking for himself and Davis, P. J., and Brady, J., held that upon a strict reading of the order appointing the receiver the receivership was obtained by the plaintiff upon a condition that he should apply the rents and profits to the payment of the ground rent and taxes. The decision therefore turned distinctly upon the terms of the order. The court of appeals took a view of the effect of the order different from that taken in the court below. As between the two, I am inclined to think that the view of the court below was the sounder one. But it is to be observed that in that case the receiver was appointed in a suit to which the first mortgagee was not a party, and he could have no standing to claim any part of the fund, except upon the terms of the order appointing the receiver. This disposes of all the cases cited in behalf of Mrs. Feldmark, and I feel constrained to advise an order declaring in accordance with the views first above stated, namely, that the amount due the complainant for deficiency on its mortgage shall be paid out of the fund in the receiver's hands after settling his compensation and expenses, and the balance to Mrs. Feldmark, providing it shall appear, after notice served on the other defendants, that she is entitled to it as against them.

As both parties have succeeded in part and failed in part, there will be no costs.

discharge the old site from the easement of the way, but ineffectual to substitute the new site in its place.

3. An owner of lands bordering upon highwater mark in the tide waters of this state, who has not obtained the state's title to the lands lying in front of his property and below high-water mark, has no power to charge the latter with any easement which will be forceful against a subsequent grant by the state of its title in those lands.

4. Where two or more grantors, who own adjoining lots of lands in severalty, join in a deed locating a continuous right of way across all their respective lots, the deed will be held to be the several grant of each owner.

5. Where a deed shows that such owners are actuated by a common purpose to carry into effect by their joint action a general plan for the mutual benefit of themselves and of the public, the expressions of the deed, if obscure or ambiguous, will be construed, if possible, to fulfill the common purpose of the grantors.

6. In the absence of any proof of any agreement that a deed shall be delivered at some particular time, or that it shall be deposited in escrow until all the grantors shall have executed it, or some other evidence of the intention of the parties as to the time of delivery, the general rule is that a deed will be presumed to have been delivered at the time of its date, and the title of the grantee will relate to that date.

7. A deed conveying a right of way for the purpose of erecting thereon a public elevated board walk at the edge of the sea, with an aiding covenant that no building should be erected oceanward of the board walk, was made and delivered precedently to the making and delivery of a second deed conveying the fee in the lands oceanward of the board walk, without mention either of the easement or of the aiding covenant. The second deed was recorded before the first. Before and at the time of the making of the second deed, the first grantee had entered upon the land conveyed, and was then building thereon the elevated board walk, which was a steel and wooden structure 40 feet wide and 8 or 10 feet high. Held, the physical condition of affairs on the land put the second grantees, at the time they took their deed, upon warning of the claim of the first grantee, and was, in legal effect, notice to the second grantees of the first grantee's deed.

8. A deed was made, acknowledged, and delivered to a city. It relocated portions of the site of a public right of way. A clause provided that as soon as the city should, by resolution, accept the deed and cause it to be recorded, all the city's rights in the old site should revert to the grantor. The city, before the date of the resolution of acceptance and the recording of the deed, entered into possession of the new portions of the way. Held, the clause will not be held to have postponed the time when the deed operated as a conveyance of the new portions of site of the way until the passage of the formal resolution of acceptance, etc. That clause had its full effect when it fixed the date on which the old portions of the site of the way should revert to the possession of the grantors.

(Syllabus by the Court.)

Bill by Atlantic City against the New Auditorium Pier Company. Order to show cause why an injunction should not be granted, and motion for a preliminary injunction granted.

The bill of complaint in this case was originally filed against George C. Tilyou as

¶ 6. See Deeds, vol. 16, Cent. Dig. § 578.

sole defendant. Subsequently, on the coming in of an order to show cause, it was by consent amended by substituting the New Auditorium Pier Company, a corporation of this state, as sole defendant; Mr. Tilyou be ing president of that company, and the parties appearing by the same counsel. The bill is filed by Atlantic City to enforce certain covenants contained in two deeds, whereby it is claimed certain lands lying to the oceanward of the present Atlantic City board walk were to remain without being built upon, unless by the erection of an iron or steel pier having certain characteristics, hereinafter mentioned. For a number of years previous to the making of either of these deeds, Atlantic City had maintained a public board walk at the edge of the ocean, as an attractive public promenade. The power to lay out and construct board walks along the ocean front was given to such cities by an act of the legislature (P. L. 1889, p. 206), with authority to condemn lands for that purpose. By a supplement to this act (P. L. 1890, p. 159) authority was given to construct elevated board walks, and to accept dedications of lands or rights for making improvements of like character. In 1896 a further supplement (P. L. 1896, p. 18) authorized the relocation of such walks, and the issue of bonds for the purpose of renewing, repairing, and maintaining such public walks. This legislation was followed, so far as it applied to Atlantic City, by several ordinances passed by that city, arranging for the building and relocation of the board walk along the ocean front of the city. The latest of these ordinances, approved May 6, 1896, providing for the relocation and building of the present board walk, may be found annexed to the bill of complaint in this cause. As the number of visitors to the seaside increased, it became desirable to afford greater accommodations for their entertainment. The owners of the ocean front were in sympathy with this object, and some of them, in disposing of their lots, inserted in their deeds covenants protecting the use of the board walk by the public, and prohibiting the erection of buildings to the oceanward of it, for the purpose of preserving a continuous ocean view from the board walk. The first deed of this character exhibited in this cause was that made by Charles Evans and others to Atlantic City, dated January 2, 1890. In consideration that the city would erect a board walk, it conveyed an easement or right of way for that purpose over a 60 feet wide strip of land at the ocean edge, describing the territory in which the right of way was, by exact metes and bounds. The deed contained this clause: "And the said parties of the first part, for themselves, their heirs, executors, administrators, and assigns, do hereby covenant, promise, and agree to and with the said party of the second part, its successors and assigns, that they and each

of them, the said parties of the first part, their heirs, executors, administrators, and assigns, shall not and will not put or erect or allow to be placed or erected on the lands hereby granted, or on the ocean side thereof, any building or structure, except as above provided." The only provision in the deed which dealt with the erection of any structure on the oceanward side of the board-walk strip was the one declaring that nothing in the agreement should be construed to prevent any of the grantors from sinking such piling or placing such sea walls on the ocean front as might be necessary to protect his property from the encroachment of the sea, and another clause which excepted such open pavilions as city council might, upon application, allow. After the deed of Evans and others of January 2, 1890, had been made and recorded, Evans, on July 22, 1895, conveyed to Richard F. Loper a lot fronting on the westerly side of Pennsylvania avenue for 600 feet, and having a depth westwardly from that avenue of 150 feet. This lot bounded on the "ordinary high-water line of the Atlantic Ocean." The territory conveyed included the lands on which both the old board walk, existing antecedent to 1896, and the new steel board walk, built in the latter year, were located. The deed conveyed to Mr. Loper, the grantee, the riparian right to purchase the state's lands to the oceanward of the ordinary high-water line. It contained the following recital: "Subject, nevertheless, and this conveyance is granted and accepted accordingly, to the following covenant and conditions, viz.: The said grantee, for himself, his heirs, executors, and administrators and assigns, covenants and agrees to and with the said grantors, their heirs and assigns, that he, the said grantee, his heirs and assigns, shall never erect upon the said premises any house or other building nearer the line of the above-mentioned Pennsylvania avenue than twenty-seven feet of the property line. Subject also to the easement or right of way over sixty feet of the abovedescribed land granted by the said Charles Evans and wife to the city of Atlantic City by indenture dated January 2nd, 1890, and recorded in the clerk's office of said Atlantic county in Book #2 of Assignments, page 237," etc., "& in Book #173 of Deeds, page 11," etc. After receiving the above conveyance from Evans, which carried the riparian right, Loper on the 29th day of August, 1895, received from the riparian commissioners of this state a grant of the state's right in the lands lying to the oceanward of the highwater line. The lot of land thus granted was 150 feet in width at the high-water line, and extended of that width from that line, 428 feet, in a southeasterly direction, to the commissioners' exterior wharf line. Its first course runs "southerly along the westerly line of Pennsylvania avenue, extended in a straight line, 428 feet, more or less, to the

exterior line," etc. By reason of the greatly increased use of the board walk, it appears to have been found necessary to further enlarge its width and length. The act of the legislature passed in 1896 (see P. L. 1896, p. 71), above referred to, enabled cities located on the Atlantic Ocean to lay out, construct, and enlarge street board walks, etc., and to condemn lands for that purpose. Under this statute the ordinance of the 6th day of May, 1896, a copy of which is annexed to the bill of complaint, was passed. This ordinance, by describing an inland line, laid out a 60 feet wide street along the ocean front of Atlantic City, and provided for the erection in said street of an elevated board walk, which should be of the width of 40 feet between certain avenues, and 20 feet between certain other avenues. At the place where the present dispute has arisen the board walk is of the width of 40 feet. The other 20 feet of the width of the street lies along the oceanward front of the constructed board walk. While the ordinance providing for the new board walk was under consideration, the owners of the beach front, desiring to avoid a condemnation of their lands, agreed to dedicate to the public use the strip 60 feet wide lying along the ocean front. This was manifested by a covenant in the form of a deed (a copy of which is annexed to the bill), which is dated the 30th day of April, 1836. The description of the premises affected by this covenant is of the entire length and width of the proposed street in which the board walk has been placed. The particular portions owned by each grantor are not separately described. This covenant was executed by Richard F. Loper, as owner of lands lying on the ocean front, his wife joining in the deed. The certificate of acknowledgment annexed to the covenant certifies that Richard F. Loper and Mary, his wife, executed and acknowledged it on the 9th day of May, 1896. On the 30th day of April, 1896, when the above covenant is dated, and on the 9th day of May, 1896, when it is certified to have been made, delivered, and acknowledged by Richard F. Loper, he was the owner of the lot of land 150 feet wide, or deep, lying on the westerly side of Pennsylvania avenue, which was conveyed to him by EvThe new board walk constructed under the ordinance of 1896 crosses this lot. Loper was also on April 30, 1896, and on May 9, 1896, the owner of the lot lying to the oceanward of the Evans lot, beyond high-water mark, which had been conveyed to him by the riparian commissioners in August, 1895. It is on a portion of this latter described lot, to the oceanward of the board walk, that Loper's ultimate grantee, the defendant, the New Auditorium Pier Company, is in the act of erecting the structure, the right to build which is challenged by this suit. The following diagram exhibited on the argument will show the lay of the land:

ans.

The covenant dated April 30, 1896, which was executed by Loper and wife, and other beach-front owners, contained several clauses which affect the present controversy. Among others, the covenantors, Loper and others, promised and agreed, for themselves, their heirs, and assigns, that they "shall not and will not erect or allow to be placed or erected on the lands hereby granted, or on the ocean side thereof, any building or structure, except as provided by ordinance," etc. Also the following clause: "(3) It is further hereby covenanted and agreed that the present elevated board walk may remain until the new steel walk is built by the said city on the line of the new street as hereby located and described, and, until such new walk is built, that no structure or improvements will be made between the said walk, as now located, and the westerly and northerly line of said street. And it is further covenanted and agreed by and between said parties, except for the purpose of maintaining the said board walk now constructed as herein provided, that whenever and as soon

as the said city, by a resolution or ordinance passed by its council for that purpose, shall accept this conveyance and cause the same to be recorded, thereupon and thereafter all the right, title, and interest, possession and right of possession (except for the purpose of maintaining the said board walk now constructed as before expressed), of, in, and to all lands lying westerly and northerly of the said westerly and northerly line of the said street as herein described and located, shall immediately cease and determine, and revert to the grantors of said lands, their heirs and assigns. And the said city hereby agrees to vacate the said street, or such part or parts thereof as lie westerly and northerly of said line, without expense to the said owners, their heirs or assigns; they also hereby covenanting and agreeing to waive all allowances for damages (if any accrued by such vacation): provided, however, that the within grantors shall not be prohibited from building a pier in front of their property, and connecting the same to the new walk about to be erected, and upon the fur