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Burkhardt v. Burkhardt.

of March, 1887, a decree of divorce was signed against her. About the year 1889 she married one Joseph Hoffman, and lived with him for about a year, in the same county. He was a manufacturer of iron fences, balcony railings and the like in New York City. In 1890 he had the misfortune to run over, with his wagon, and kill a boy. For this he was arrested and set at large on bail, and then ran away. His only relatives at the time were a sister, living in Brooklyn, and a nephew by marriage, living in New York City. A few days later his sister received a letter from him dated at Chicago. She answered that letter, but received no reply, and from that time to the time of the trial of this suit not a breath.has ever been heard from him. The sister and nephew were both sworn and testified to that effect, and that they had made earnest inquiries about him, without results. To the same effect is the evidence of the defendant. She swears that she inquired about him from everybody that she supposed would know, and received no tidings whatever of him.

After Hoffman left her she lived with her mother in Hoboken, and worked as a midwife. Her mother kept boarders, and among them was the man Hoeger. Hoeger cohabited with the defendant in her mother's house, with the result that a child was born to her in January, 1893, and she gave her name as Hoeger to the midwife who attended her, and that name was inserted in the birth certificate. She swears that, at that time, she was engaged to and intended to marry Hoeger, but afterwards changed her mind and refused. Hoeger swears that they were engaged to be married; but they both swear that they never were married, either by a minister, a magistrate or by mutual verbal promise to take one another as husband and wife at the present time. Hoeger swears that he was willing to marry her, but that she refused him; and a year or two after the birth of the child he married another woman, and has lived with her from that time on as his wife.

The complainant was thoroughly familiar with the circumstances of her marriage with Hoffman, her connection with Hoeger and the birth of the child. He was a married man at that time, living in the immediate neighborhood, and on friendly

Burkhardt v. Burkhardt.

and rather intimate terms with the defendant and her mother. Having become a widower, he paid court to the defendant, after she separated from Hoeger, and, as I have said, with full knowledge that the child she was rearing was Hoeger's child, and had taken his name, he married her. They lived together for a short time, and then separated.

The effect of the previous marriage with Hoffman was to render void any kind of marriage contract that may have been supposed to exist between the defendant and Hoeger, for, at the time of their connection, only two or three years had elapsed from the time of Hoffman's disappearance.

This leaves the only question in the cause whether the presumption of the death of Hoffman, at the time of the ceremony of marriage between the complainant and defendant, was sufficient to legalize that ceremony.

The law applicable to the facts is perfectly well settled. Independent of our statute, there is a presumption against the continuance of life after a long absence, without evidence of continuing life. At the common law the turning point was fixed at seven years. Best. Ev. § 409, and cases cited to the American edition. The common law presumption is made imperative by our statute (Rev. Stat. p. 1187). Osborn v. Allen, 2 Dutch. 388 (per Chief-Justice Green); Hoyt v. Newbold, 16 Vr. 219; Clarke v. Canfield, 2 McCart. 119 (per Chancellor Green). In Osborn v. Allen Chief-Justice Green said: "All the proof that can be required or expected is that the party has been absent from the state, or from his family or home, and has not been heard from within the period prescribed by the statute. The effect of the statute was simply to define the limits and direct the application of an ancient rule of the common law, which had been adopted and applied by existing English statutes to certain specified cases." And in Hoyt v. Newbold all the authorities are collected by Justice Parker, and the same doctrine laid down and extended to a case where a man had been absent from the state for a great many years, and title was sought to be made through him, by deed purporting to be executed by a man of the same name in California, without proof of his identity.-Held, that the title failed.

Perrine v. Perrine.

Numerous other authorities to the same effect were cited by the counsel for the defendant, among them a well-defined line of cases which holds that where the validity of a marriage is involved, the courts will presume death, under some circumstances, in less than the statutory period. I do not deem it necessary to cite or rely upon those cases. It is sufficient to say that there is not the slightest evidence disclosed by the case that the complainant was in anywise imposed upon by the defendant. He was a man of mature age, thoroughly able to take care of himself. He knew all about the defendant and her history, and she made no false representations to him.

Under the circumstances I think the death of Hoffman must be presumed, and, according to the case of Clarke v. Canfield, supra, it cannot be presumed to have occurred until about the year 1897, long after her connection with Hoeger had ceased; but it must be presumed to have occurred in that year, and that was prior to her marriage with the complainant.

My conclusion is that the complainant is not entitled to the relief prayed for, and the bill must be dismissed, with costs.

JOSEPH M. PERRINE and another

υ.

WILLIAM D. PERRINE et al.

[Submitted June 9th, 1902. Decided June 19th, 1902.
Filed October 11th, 1902.]

After a bill by a judgment creditor to set aside a conveyance of land
by the judgment debtor to a third party, on the ground that it was made
in fraud of the judgment creditor, and answer thereto and issued joined
thereon and reference to a vice-chancellor, it is improper practice (1) to
permit other judgment creditors to be made parties complainant in that
suit without notice of an application for that purpose to both complainant
and the defendant who holds the title and who is alleged to be a fraudu-

18 483 865 719

Perrine v. Perrine.

lent grantee, or consent of both; and, (2) an application to be permitted to be made a party complainant must be made to the vice-chancellor to whom the cause has been referred, and cannot be heard by the advisory master in the clerk's office.

On motion to vacate orders.

This is a bill by a judgment creditor to set aside three several conveyances and one mortgage of several parcels of land made by the judgment debtor, William D. Perrine-two of the conveyances to Sarah M. Perrine, his wife, the other conveyance to his son Samuel E. Perrine and the mortgage to his son Elmer Perrine-on the ground that they are fraudulent as against the complainant's debt.

The original bill was filed January 29th, 1900. A demurrer was interposed in March, 1900. The cause was formally referred to Vice-Chancellor Pitney in May, 1900. The demurrer was sustained in June, 1900. An amended bill was filed in July, 1900. A demurrer to that bill was filed in August, 1900, and was sustained in October, 1900. A second amended bill was filed November 2d, 1900, and a demurrer thereto was filed in December, 1900. That demurrer was stricken out as frivolous, and an appeal was taken from the order striking it out, which was dismissed by the court of errors and appeals; and finally, in May, 1901, answers were filed by Sarah M. Perrine, the wife, and Samuel E. Perrine, the son, to whom the several conveyances were made. No answer was filed by Elmer Perrine, the mortgagee, and a decree pro confesso was taken against him.

The cause was referred a second time to Vice-Chancellor Pitney, and the hearing of it set for September 10th, 1901. It was heard on that day and on October 10th and November 11th, 1901, and was argued and decided orally on November 25th, 1901. 50 Atl. Rep. 694.

The decree declared the conveyance to the son Samuel to be fraudulent as against the complainant, and ordered that the land covered by that conveyance, and also the land covered by the mortgage, which was, in open court, confessed to be fraudulent as against complainant, be sold and the money brought into

Perrine v. Perrine.

court. The validity of the two conveyances to the wife was reserved for further consideration.

An appeal was taken by Samuel from that decree on the 10th of February, 1902, and later on an order was made by this court staying the sale of so much of the land as was comprised in the conveyance to the son Samuel.

The master sold the land covered by the admittedly fraudulent mortgage, and it did not produce enough to pay the complainant and another defendant who had acquired rights under the mortgage.

In the months of December, 1901, and January, 1902, five several persons filed their several petitions in this court, entitled in this cause, alleging themselves to be judgment creditors of the defendant William D. Perrine, and asked to be admitted as parties complainant to the suit, which petitions untruthfully stated that the bill was filed for the benefit of complainant and of such creditors as should come in and contribute to the expense of the suit. On the filing of these five separate petitions orders were made admitting each of the petitioners as a party complainant. These orders were signed by the chancellor, on the advice of the advisory master in the clerk's office.

Motion is now made by the defendants Samuel E. Perrine and Sarah M. Perrine to set aside each of those orders as improvidently made, and the solicitor who prepared the orders attended in opposition thereto. The motions were made to the chancellor, who referred them to Vice-Chancellor Pitney.

Mr. Howard W. Hayes, for the motion.

Mr. Adrian S. Appelget, contra.

PITNEY, V. C.

The petitions and orders are all within the rule laid down in Iauch v. de Socarras, 11 Dick. Ch. Rep. 524, and are therefore not orders of course. The decision in Iauch v. de Socarras was not varied or disturbed by the decision in Morehouse v. Kissam, 13 Dick. Ch. Rep. 364. In the latter case several judgment creditors united in a bill to set aside a conveyance of land on

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