purpose of setting aside the fraudulent conveyance. But the practice in this court is otherwise, and more in conformity with the established course of proceeding in a court of equity.

We are of opinion, therefore, that the appellant mistook his rights in attempting to raise the question of fraud in the probate sales in his answer to the injunction bill; and that, instead thereof, he should have filed a cross-bill, and have thus instituted a direct proceding for the purpose of setting aside the sales and subjecting the property to his judgments and executions; and that in this respect, and to this extent, the decree of the court below was correct.

But on looking into the decree, we are apprehensive that it has been carried further than the assertion of the principle which we are disposed to uphold, and which may seriously embarrass the appellant in the pursuit of a remedy that is yet clearly open to him.

The injunction issued, on filing the bill of complainants, commanded the appellant to desist from all further proceedings on his three judgments, or on the executions issued against the property; and the court on the coming in of the answer, has decreed that the same be made perpetual. And, further, that the complainants recover costs of suit, without prejudice to the right of the defendant to any action he may think proper.

It is at least a matter of doubt, and might be of litigation hereafter, whether, upon the broad and absolute terms of the decree used in enjoining the proceedings, the party is not concluded from further proceedings against the property in question, founded upon these judgments and executions.

They must constitute the foundation of his right and title, upon filing a cross-blll, to any relief, that he may hereafter show himself entitled to. The saving clause may not be regarded as necessarily leaving a proceeding of this description open to him. A question might also be raised, whether the judgments are not so effectually enjoined, as to prevent their enforcement against the property of the judgment debtor not in controversy in this suit. At all events, we think it due to the appellant, and justice, looking at the nature and character of the transaction and proceeding as developed in the pleadings, that the case should be cleared of all doubts and dispute upon this point. We shall, therefore, reverse the decree, and remit the proceedings to the court below, with directions that all further proceedings on the three judg

ments and executions be stayed, as it respects the property seized and in question, but that the appellant have liberty to file a crossbill, and take such further proceedings thereon as he may be advised.

Decree reversed.

BECK v. BECK.

43 N. J. Eq., 39. [1887.]

VAN FLEET, V. C.: This is a suit by a wife against her husband to compel him to account for the rents of certain real estate which she says he has collected as her agent. The parties were married in August, 1854. The complainant holds the legal title to the two pieces of real estate in the city of Newark. The first was conveyed to her in August, 1859, and is situate on Springfield avenue. The second was conveyed to her in November, 1877, and is situate on the corner of New and Plane streets. There are buildings on both tracts, which have been almost constantly occupied by tenants since the complainant obtained title. The defendant has collected all the rents, but has neither paid nor accounted to the complainant for them. The complainant, by her bill, says that she authorized the defendant to collect the rents, with the understanding that he should apply them to the payment of taxes and other necessary annual charges of the premises, and also in making such improvements on the premises as would inure to her benefit, and account to her from time to time for any balance which remained in his hands. The complainant revoked the defendant's agency in October, 1886, but he, notwithstanding, persisted in attempting to collect the rents, and because some of the tenants refused to pay rent to him he instituted legal proceedings to dispossess them. The complainant then brought this suit, asking that the defendant might be required to account for the rents he had already received, and also that he be restrained from making further collections, and from molesting or annoying her tenants. The defendant has answered, denying the complainant's right to an account. He says that he is the real owner of both tracts. His claim in this regard is put upon the ground of a resulting trust. He says that he made the contract of purchase for each tract, and subsequently paid the whole of the purchase

money with his own funds, his wife not contributing a penny. He likewise says that he caused the legal title to the lands to be made to his wife, but that he did so without either an agreement or purpose to make a gift to her, or a settlement upon her, and that the lands have always, since she obtained title, been treated and considered as belonging to him, she holding the legal title in trust for him. The defendant puts his right to the rents of the property on the corner of New and Plane streets on an additional ground. He says that property was sold by the city of Newark, to enforce an unpaid assessment made against it, for a term of 50 years from the 16th day of March, 1871, and that a legal title was subsequently made to the purchaser in execution of the sale, and that he (defendant) became invested with such title on the 15th of July, 1878, and thereby acquired a right to the possession and use of this part of the property in controversy superior to any which the complainant can claim. The defendant has also made these facts the basis of a cross-bill, in which he asks a decree declaring that the complainant holds the legal title to the lands in question in trust for him, and directing her to convey them to him.

This cross-bill is the subject of the present controversy. The complainant moves to strike it out both on the ground that it is useless and impertinent; useless, because, as her counsel contends, if the facts stated in the cross-bill were set up in the answer alone, and proved, they would constitute, under the answer, as complete and perfect a defence to the case made by the bill as can be made; impertinent, because the cross-bill seeks to thrust into the case a question entirely foreign to the matter put in litigation by the original bill.

There can be no doubt, I think, that a cross-bill which merely sets up matter which the defendant may make equally available and effectual as a defence by answer, is demurrable; for in such case the cross-bill is not only unnecessary, but useless. The only purpose it could serve in such case would be to incumber the record, and add to the expense of litigation. And it is also well settled that a defendant can only use a cross-bill against a complainant as a means of defence. It must, therefore, be confined to the matter put in litigation by the original bill, and cannot be used by a defendant as a means of obtaining relief against a complainant in respect to a cause of action distinct from and wholly unconnected with the complainant's cause of action. Carpenter

v. Gray, 37 N. J. Eq., 389; Kirkpatrick v. Corning, 39 N. J. Eq., 136; Krueger v. Ferry, 41 N. J. Eq., 432 (5 Atl. Rep., 452). The question presented for judgment must be decided by these rules.

So far as the defendant's defence rests on a legal title, it would seem to be entirely clear that he does not need the aid of a crossbill, but that he may make it fully and effectually under his answer. The gravamen of the complainant's case is that the defendant has, as her agent, received the rents of certain real estate which she holds for her own use, and refused to pay them to her. The defendant denies the principal fact upon which this claim. rests. He says that the complainant does not hold the legal title to a part of the real estate of which she claims the rent, but that he does. If he establishes this fact, he will show as perfect and as complete a defence as can be shown, and a decree of dismissal denying that the complainant is entitled to these rents will render his defence, both in point of protection and prevention, as adequate and efficacious as can be.

So

The other branch of the defence stands, however, in a very different position, and is subject to entirely different rules. The deeds under which the complainant claims the rents in controversy show on their face that she is the absolute owner, for her own use, of the lands from which the rents were derived. long as the deeds stand in their original form, the complainant's title to the rents must be regarded as perfect. The defendant seeks to change the form of the deeds, or at least their effect. They are now absolute, investing the complainant with a perfect legal title to the lands for her own use. The defendant seeks to fasten a trust upon the complainant's title. This can only be done by the decree of this court, and until this court has declared, by its decree, that the complainant's title is subject to a trust, the deeds must be construed and enforced, here and elsewhere, according to their plain terms. No such decree can be made except upon a bill, either original or cross. Parol evidence is admissible for the purpose of establishing a resulting trust, but not for the purpose of contradicting the terms of a valid written contract. If evidence of this kind should be offered and received in this case, under an answer alone, the only office it could perform would be to contradict the terms of the deeds; for, in this condition of the pleadings, the court would be powerless, even if such should be shown to be the fact, to fasten a trust on the complainant's title. So that the only purpose the admission of such evidence could

serve, if the cross-bill is suppressed, would be to contradict the terms of the deeds. But with the cross-bill constituting part of the record in the case, such evidence could be properly received, not for the purposes of contradiction, but to lay the foundation for effecting a change, by judicial means, in the complainant's title-by making her title, which is now free and unclogged, subject to a trust. The case must, in my judgment, be ruled by the principles which govern the reformation of written contracts. In the absence of fraud, a defendant cannot show, under an answer alone, that a contract which is perfect and complete in all its parts differs, in a material respect, from the contract which he made; but if he desires to show that such is the fact, he must ask by cross-bill to have the contract reformed. Van Syckel v. Dalrymple, 32 N. J. Eq., 233, S. C. on appeal, Id. 826. The complainant's motion must, therefore, be denied.

蓉

DOBSON v. PEARCE.

12 N. Y., 156. [1854.]

The action was commenced in New York Superior Court on the 26th of September, 1850. The complaint was on a judgment for $612.93, recovered in that court in April, 1846, in favor of one Olney against Pearce, the defendant in this suit, alleging an assignment thereof from Olney to Dobson, the plaintiff, just previous to the commencement of the action.

The defendant by his answer alleged that the judgment was entered in a suit commenced against him, in favor of Olney, by the service of a capias upon him in February, 1846, when he was casually in New York, he then and even after being a resident of Connecticut; that Olney had no just or legal demand against him when the capias was served and that he was induced by fraudulent representations and assurances of Olney, made to him after the capias was served, and upon which he relied, to the effect that no further proceedings would be taken in the suit, not to appear therein; and that afterwards Olney fraudulently and without the knowledge of the defendant procured the judgment mentioned in the complaint to be entered in the suit upon a false and unfounded claim, and known so to be by Olney at the time; that in 1848 Olney commenced an action of debt on the judgment