idea was conveyed to the grantee in the form | stated that it would be granted in case of of a misrepresentation of a fact. He relied on that misrepresentation, paid his money in consequence thereof, and then urged that the amount overpaid by him should be deducted from the amount claimed on the purchase money mortgage. A decree was made in his favor; the deduction was allowed. The case stands approved by all the judges who have had to deal with the question. In Weart v. Rose (1863) 16 N. J. Eq. 290, the mortgagee, who was the vendee, brought suit to redeem the mortgage after deducting therefrom the price of the deficiency ascertained to exist in the quantity of acres as gross mistake, there is substantially no difference between the two expressions. The mistake must be sufficient to induce the court to believe, if the truth had been known at the time, the parties would not have contracted; in view of this idea, "mistake" and "gross mistake" are interchangeable. It will be observed that this suit was not brought until after the transaction had been consummated by the delivery of the deed and the payment of the purchase money. It is undoubtedly the rule in England, and the defendants in this case rely upon it, that after the contract has been performed by the de described in the deed. The relief was sought | livery of the deed and the satisfaction of (1) on the ground of fraud; (2) on the ground of mutual mistake. The court held that the charge of fraud was not sustained by the testimony, and that the deficiency in acreage was too small to warrant the interference of the court on the ground of gross mistake. It followed the doctrine of Couse v. Boyles, the purchase money no action or suit will lie, either at law or in equity, to recover compensation or obtain the return of a proportionate amount of the purchase money, unless there is some covenant or agreement on which the suit or action can be based; that the vendee, having chosen to accept his but refused relief because of the insignif- deed without making a survey of the propty sold do not correspond with the descrip- | of discovering its falsity, which you did not icance of the cause of complaint. In White v. Stretch (1871) 22 N. J. Eq. 76, this court, upon the same principle and upon the authority of Couse v. Boyles, deducted from the purchase-money mortgage the amount of assessments on the mortgaged premises which the mortgagor had paid. In Melick v. Dayton (1881) 34 N. J. Eq. 245, the Court of Errors and Appeals in a foreclosure suit declared that the mortgagor might have relief, if the mortgagee had fraudulently represented the number of acres to be greater than the actual number conveyed, and that abatement would also be made where there is a gross mistake; gross mistake was said to occur where the difference between the actual and the estimated quantity of land represented is so great as to clearly warrant the conclusion that the parties would not have contracted, had they known the truth. In Frenche v. The Chancellor (1893) 51 N. J. Eq. 624, 27 Atl. 140, 40 Am. St. Rep. 548, the Court of Errors and Appeals reaffirmed the doctrine of Melick v. Dayton, saying: "The words 'more or less' must be intended to meet such a result; but if the variance be considerable the party sustaining the loss should be allowed for it, and this rule should prevail when it arises from mistake only, without fraud or deception." See, also, Kuhnen v. Parker (1897) 56 N. J. Eq. 286, 38 Atl. 641; McMichael v. Webster (1898) 57 N. J. Eq. 296, 41 Atl. 714, 73 Am. St. Rep. 630; Van Blarcom v. Hopkins (1902) 63 N. J. Eq. 466, 52 Atl. 147. erty, and without having insisted upon protective covenants, is entirely without remedy, and must suffer the consequences of his folly, and that the remedy by way of compensation is not an independent remedy, but is merely ancillary to that of specific performance. Jolliffe v. Baker, 11 Q. B. D. 254, 52 L. J. Q. B. 609; Palmer v. Johnson (C. A.) 13 Q. B. D. 351, 53 L. J. Q. B. 348. The point has been much mooted in the English courts, but has not yet been discussed or decided by the House of Lords. The question was evidently started in Couse v. Boyles. Chancellor Pennington says: "Whether a court of equity will entertain jurisdiction for the sole purpose of giving compensation or damages to a complainant for any deficiency in the quantity of land conveyed after a conveyance actually made is a very different question from making such an allowance to a party who comes into court and asks a specific performance of an unexecuted agreement," although he had just written that he did not think it was a sufficient objection to allowing an abatement of the price that the contract had been consummated. He said it was true that the cases cited referred to contracts remaining in fieri, but that the principle was the same whether the contract only be executed or has been consummated by giving the deed. The point seems to have been argued in Clark v. Carpenter, 19 N. J. Eq. 328. The reason alleged on the part of the defendants in support of the English rule is stated by Mr. Williams as follows: "The purchaser should also carefully inspect the whole of the property sold, and have it surveyed prior to completion, and should make inquiry of the tenants or occupiers with respect to the boundaries or other matters regarding the physical condition of the property, for if by reason of any material de In Capstick v. Crane (1903) 66 N. J. Eq. 341, 57 Atl. 1045, the rule in the cases of Couse v. Boyles, Dayton v. Melick, and Van Blarcom v. Hopkins was again announced and affirmed by the Court of Errors and Appeals. I take it that, while some of the judges have stated that relief would be tion of it given in the contract, or in any representation which induced the purchaser to make the contract, and the error be caused by the innocent misrepresentation of the vendor, and not by fraud, the purchaser will be entitled to resist the specific performance of or to rescind the contract while it remains uncompleted; but when the contract has been fully performed the purchaser will not be entitled to any relief in respect thereof, except (1) by virtue of an express agreement contained in the contract to make compensation for such errors, or (2) if the defect be really a defect of title and compensation be recoverable under the covenants of title contained in the conveyance, or (3) if the representation amounted to a warranty collateral to the contract for sale of the truth of the fact stated. Here it may be mentioned that if a man buy land without inspecting it he does so at his own risk, and must accept without compensation any defects in the physical condition of the property which are patent to any one who views it, and are not inconsistent with the description contained in the contract for sale." 1 Williams on V. and P. 539. This doctrine would relieve the vendor from the consequences of his misrepresentation, and is quite at variance with the case of Redgrave v. Hurd, 20 C. D. 1, 51 L. J. Ch. 113, which was expressly approved by the Judicial Committee of the Privy Council in Aaron's Reefs v. Twist, [1896] A. C. 273, 65 L. J. P. C. 54, and sanctioned by the Supreme Court of this state in Cowley v. Smyth, 46 N. J. Law, 380, 50 Am. Rep. 432, and by this court in Powell v. Cash, 54 N. J. Eq. 218, 34 Atl. 131, Eibel v. Von Fell, 55 N. J. Eq. 670, 38 Atl. 201, and Du Bois v. Nugent, 69 N. J. Eq. 145, 60 Atl. 339. In that case a solicitor agreed to sell an interest in an established law practice, and representations were made by him as to the amount of the net income of the business, and the purchaser examined for himself the vendor's books. Reliance in support of the contract was placed upon the fact that the party attempting to evade it had made a personal examination of the books, but the court held to the doctrine that, where untrue representations are made by a vendor to a vendee, the vendee has a right to rely upon them; and the fact that he has had an opportunity to examine, and did examine for himself, will not avail the vendor, unless it appears affirmatively that the vendee did rely upon his own examination, and not upon the statement of the vendor. Jessel, M. R., says: "If a man is induced to enter into a contract by a false representation, it is not a sufficient answer to him to say: 'If you had used due diligence, you would have found out that the report choose to avail yourself of.' It has also been held that those who accept those false statements as true are not deprived of their remedy merely because they neglected to go and look at the contracts themselves, though they were told the contracts were in writing, and might be inspected if they asked to see them. Another instance with which we are familiar is a false statement as to the contents of a lease, such a case as a man saying there was no covenant or provision in the lease to prevent the carrying on in the house to be sold the trade which the purchaser was known by the vendor to be desirous of carrying on, although the lease itself might be produced at the sale, or might have been opened to the inspection of the purchaser long previous to the sale. It was held the vendor could not be allowed to say, 'You were not entitled to give credit to my statement.' It is not sufficient, therefore, to say that a man has had the opportunity of investigating the real estate of the case, but has not availed himself of that opportunity." And that appears to be the result of the cases in this court. Eibel v. Von Fell, 55 N. J. Eq. 670. 38 Atl. 201, and Du Bois v. Nugent, 69 N. J. Eq. 145, 60 Atl. 339. At common law it must be conceded that, after the delivery of the deed to the grantee and the payment by him of the purchase money for the conveyance, no right of action remains, except upon some covenant or agreement which still subsists as a separate and independent cause of action; and, while none of the New Jersey cases above cited reaches to the question of liability after the consummation of the contract, the reasoning of Chancellor Pennington, in Couse v. Boyles, supra, seems to establish the jurisdiction of equity, provided the complainant has done nothing which would interfere with his equities accruing from the transaction. Chief Justice Beaseley, in Davis v. Clark, 3 N. J. Eq. 579, argues that the defendant's obligation is a separate and independent one from the complainant's obligation to pay the purchase money, and that the ground of action exists wherever the vendor is liable to the vendee for damages in consequence of the failure of the land to come up to the represented acreage. He considered the claim as a set-off to be allowed in equity by way of recoupment, in order to avoid a multiplicity of suits and prevent undue litigation. The decree will therefore be in favor of the complainant. The complainant assumed the payment of a mortgage covering the lands in question, and other lands. The defendant has applied for leave to amend his bill so as to offset the amount of his claim against the amount which he has assumed to pay. I will hear counsel further on this application at the The cross-bill of the mortgagor in a suit to foreclose a mortgage seeking a decree that the mortgage was satisfied by payment of insurance money to the mortgagee averred that the mortgage was made to G.; that insurance policies on the mortgaged property were assigned to G. as collateral security; that the mortgage authorized the mortgagee, in case of the mortgagor failing to keep the property insured, to insure it at the mortgagor's expense, the by these presents (the mortgage) and payable on demand, with legal interest." The policies which mortgagor had assigned to mortgagee expired, and mortgagor failed to effect new insurance by reason of the fact that he was not aware that the policies had expired. Mortgagee then effected insurance on the mortgaged premises "in pursuance of the said agreement contained in the said indenture of mortgage," in an amount in excess of the amount of the mortgage. A loss by fire then occurred, and the insurance company paid the loss to the extent of the mortgage, and took from the mortgagee an as premium so paid to be added to the obligation signment of the mortgage in the name of secured by the mortgage; that the assigned policies expired, and mortgagor, because unaware thereof, failed to effect new insurance; that mortgagee then effected insurance "in pursuance of said agreement in the mortgage," in an amount in excess of the amount of the mort complainant, who now holds the mortgage in trust for the insurance company. The crossbill prays that the payment of the insurance money to the mortgagee may be decreed to operate as a satisfaction of the mortgage. The plea is to the whole cross-bill, and sets forth a single fact as follows: "Said Lincoln Godfrey (mortgagee) did not take out or effect insurance on the mortgagor's interest in the buildings in said cross-bill mentioned." No further averments are contain gage; that, the property having been burned, the insurer paid the loss to the amount of the mortgage, and took from the mortgagee an assignment of the mortgage to complainant for its benefit. Held, that the plea to the cross-bill merely that G. "did not take out or effect insurance on the mortgagor's interest" was insufficient, as its averments cannot be extended by inference, and it can negative the averments of the cross-bill only by positive averments; and ed in the plea, and no denials of any matters the fact that the policy was in form on the set forth in the cross-bill are contained in mortgagee's interest alone, which is the effect of the averment, not affecting its having been effected at the mortgagor's expense, under the provision of the mortgage, in which case it was for the benefit of the mortgagor, as well as the mortgagee, so that payment of its avails to the mortgagee discharged the mortgage, and did not entitle the insurer to be subrogated to the mortgagor's rights thereunder, as it may be where the mortgagee effects insurance at his own expense and solely in his own behalf. [Ed. Note. For other cases, see Mortgages, Dec. Dig. § 455.*] Suit by James J. Leyden against Elijah W. Lawrence and others. Heard on bill, crossbill, and plea. Plea to cross-bill overruled. Complainant's bill seeks to foreclose a mortgage against defendants' real estate. Defendants have answered and have also filed a cross-bill which seeks equitable relief against the mortgage. Complainant has filed a plea in bar to the relief prayed by the cross-bill, and the present inquiry is to determine the sufficiency of the plea. the plea except in so far as the affirmative averment above quoted may be operative as a denial. French & Richards, for complainant. A. H. Swackhamer, for defendants. LEAMING, V. C. (after stating the facts as above). It is settled in this state that a mortgagee of real estate has an insurable interest therein, and when such mortgagee, at his own expense and solely in his own behalf, procures insurance on the mortgaged property for the better security of his debt, the insurer, if obliged to pay a loss occasioned by injury to such property, may be subrogated pro tanto to the rights of the mortgagee under the mortgage. Sussex County Mutual Insurance Co. v. Woodruff, 26 N. J. Law, 541; Nelson v. Bound Brook Insurance Co., 43 N. J. Eq. 256, 11 Atl. 681, 3 Am. St. Rep. 308; Lawrence v. Union Insurance Co. (N. J. Sup.) 76 Atl. 1053. It may be said to be equally well settled that if the insurance has been taken by the mortgagee at the expense and for the benefit of the mortgagor, as well as for his own protection, the mort. The cross-bill set forth: That the mortgage which is sought to be foreclosed was made by defendant Lawrence to one Godfrey. Insurance policies on the mortgaged premises were assigned by Lawrence to Godfrey as collateral security to the mortgage. The gagor will have the right, in case of a loss, mortgage contained the usual insurance to have the avails of the policy applied for clause, whereby the mortgagor agreed to his benefit toward the discharge of his inkeep the premises insured and assign the insurance to the mortgagee as collateral security, and, failing in that, the mortgagee was authorized to insure the premises at the expense of mortgagor, and "the premium paid for effecting the same shall be a lien on the mortgaged premises, added to the amount debtedness. Pearman v. Gould, 42 N. J. Eq. 4, 5 Atl. 811. This right of the mortgagor, under the circumstances last named, has been sustained even where the policy has been in the name of the mortgagee, and where the right of the mortgagor in the policy existed under a parol agreement between the mort of the said bond or obligation and secured | gagor and mortgagee unknown to the insurer. See Kernochan v. N. Y. Bowery Fire Ins.mortgagor, in that the premiums would there Co., 17 N. Y. 428; Clinton v. Hope Ins. Co., 45 N. Y. 454; Waring v. Loder, 53 N. Y. 581; Sheldon on Subrogation, §§ 234, 235, 236. The contending parties do not at this time essentially differ in their views touching the law of subrogation. The present controversy exists more by reason of what may be called technical questions arising from the fact that complainant has asserted his defense to the cross-bill of defendants by way of a plea. It is an established rule of equity pleading that a plea, in order to constitute a bar to complainant's whole right of action, must aver every fact essential to make out a complete defense. Mount v. Manhattan Co., 41 N. J. Eq. 211, 3 Atl. 726. These averments must be direct averments. Inferences arising from the averments are not effective as a part of the plea. McEwen v. Broadhead, 11 N. J. Eq. 129; Story's Eq. Pl. § 662. A pure or affirmative plea-that is, a plea merely stating matters not apparent upon the billusually proceeds upon the ground that, admitting the case stated in the bill to be true, the matter suggested by the plea affords a sufficient reason why the complainant should not have the relief he prays. 1 Daniel's Ch. Pl. & Pr. *p. 604. Another important rule, well established, is that such pleas must clearly and distinctly aver all facts necessary to render the plea a complete equitable defense to the case made by the bill, so far as the plea extends, so that the complainant may, if he chooses, take issue upon it, and that averments are necessary to exclude intendments which would otherwise be made against the pleader. Story's Eq. Pl. § 665. With these principles in view, it seems apparent that the present plea is inadequate as an equitable defense. It will be observ. ed that the cross-bill sets forth that the insurance was for an amount in excess of the mortgage, and that it was not placed by mortgagor because mortgagor was not aware that the former insurance, which had been assigned to mortgagee as collateral security, had expired, and that the insurance now in question was effected by the mortgagee in pursuance of the agreement contained in the mortgage whereby the mortgagee was privi by become a part of the mortgage debt. The plea does not deny these averments of the cross-bill except in so far as they may be denied by inference by the statement of the plea that "the said Lincoln Godfrey (mortgagee) did not take out or effect insurance on the mortgagor's interest in the buildings in said cross-bill mentioned." As already stated, the averments of the plea cannot be thus extended by inference. If the plea seeks to negative these averments of the crossbill, it should do so by positive averments. Story's Eq. Pl. § 665; Allen v. Randolph, 4 Johns. Ch. (N. Y.) 693. The plea must therefore be considered as merely containing an averment, additional to the averments of the cross-bill, to the effect that the policy was in form on the mortgagee's interest alone. If it could at this time be properly assumed from the averments of the cross-bill and plea that the mortgagee did not effect the insurance in question pursuant to the stipulations contained in the mortgage or with reference thereto, but in fact effected the insurance on his interest as mortgagee solely in his own behalf and at his own expense and without reference to the privilege extended to him by the mortgage, the plea would probably be sufficient under the decisions of this state, already referred to; but, considering the plea in the aspect in which I am convinced it must be considered under the established rules of equity pleading, namely, as an averment of a single fact, additional to the facts stated in the bill, to the effect that the policy, when examined, will be found to be in form a policy on mortgagee's interest alone, I think the plea must be overruled. Crosscomplainant is entitled to an ascertainment of the substance, as distinguished from the form, of the entire transaction which culminated in the policy of insurance. That privilege of cross-complainant is the very privilege which is to be found in a court of equity; that privilege is not, in a case of this nature, equally available in a court of law. I will advise an order overruling the plea. (78 N. J. E. 445) leged to effect insurance at the expense of SECURITY TRUST CO. v. LOVETT et al. mortgagor, and that the cost thereof should, (Court of Chancery of New Jersey. March 13, in such case, be added to the mortgage and 1911.) GENCY OF DEATH-TIME. become a lien on the mortgaged premises. 1. WILLS (§ 542*)-CONSTRUCTION - CONTINThe equity of this cross-bill is that, under the circumstances stated, a policy of insurance, taken out by mortgagee, pursuant to the recited stipulation contained in the mortgage, will be deemed to have been for the benefit of the mortgagor as well as the mortgagee; for, if in fact taken out pursuant to the provisions of the mortgage, it was necessarily taken out at the expense of the Testator, after bequeathing his property to his wife for life, ordered a sale at her decease and a division of the proceeds among his 11 children and four named grandchildren, and then declared that, if any of the children died, leaving issue, the portion given to such child or children should be equally divided between their issue. Held, that the contingency of death of the children would be referred to death of the children prior to the termination of the life estate and the arrival of the time for distribu- | the termination thereof the property should be tion. sold and the proceeds divided equally among [Ed. Note. For other cases, see Wills, Cent. testator's 11 children, a one-twelfth part to go Dig. § 1165; Dec. Dig. § 542.*] 2. WILLS (§ 498*)-CONSTRUCTION-"ISSUE." Testator directed that after the termination of a life estate his property should be divided among his 11 children and four named grandchildren, children of a deceased child, and that, if either of the children died, leaving issue, the portion given to such child or children should be equally divided between their "issue." Held that, there being nothing in the will to indicate a contrary intention, the word "issue" would be given its ordinary meaning to include children and grandchildren. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1087-1089; Dec. Dig. § 498.* For other definitions, see Words and Phrases, vol. 4, pp. 3778-3782; vol. 8, p. 7693.] 3. WILLS (§ 533*)-DEVISEES-PER STIRPES OR PER CAPIΤΑ. On the death of certain of the children after the death of the testator, and before the termination of the life estate by the death of the widow, each leaving issue, some of whom (grandchildren of the testator) had living children born prior to the death of the widow, the issue of the testator's children so dying were not entitled to partake as one general class, but the interest of each child so dying would be distributed to his or her children and grandchildren in equal shares. [Ed. Note. For other cases, see Wills, Cent. Dig. § 1147; Dec. Dig. § 533.*] 4. WILLS (§ 636*) - CONSTRUCTION - VESTING OF ESTATE. Where testator bequeathed a life estate to his wife, and then directed that on her death the property be sold and the proceeds divided among his 11 children and four named grandchildren, children of a deceased child, and declared that, should either of the children die, leaving issue, the portion given to such child or children should be equally divided between their issue, testator's several children took vested interests at testator's death, subject to be divested in favor of their issue, in the event of their death with issue before the death of the widow. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1514-1518; Dec. Dig. § 636.*] 5. CONVERSION (§ 16*)-EQUITABLE CONVER SION. Where testator devised his property to his wife for life and at the termination of the life estate, directed that the same be sold and the proceeds divided among testator's 11 children and four named grandchildren, it was not optional with the executors whether they would sell or not, and hence there was a conversion of realty into personalty, so that the gifts to the children would be treated as gifts of personalty. [Ed. Note. For other cases, see Conversion, Cent. Dig.. §§ 38-43; Dec. Dig. § 16.*] 6. WILLS (§ 636*) - CONSTRUCTION ESTATE-RIGHTS OF WIDOW. VESTED The contingency in such case attached only to the time of payment, and not to the substance of the gift, and the death of a son after testator's death, but before the death of the life tenant, leaving a widow, but no issue, did not divest the gift to such son. [Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1514-1518; Dec. Dig. § 636.*] to four named grandchildren, children of a deceased daughter. Held that, there being no provision in the will for a residue, the children of such deceased daughter would be regarded as taking as a class, so that, on the death of one of such children, intestate and without issue, prior to the death of the testator, the bequest as to the child so dying would be regarded as having lapsed, and the gift distributed among the survivors. [Ed. Note. For other cases, see Wills, Cent. Dig. § 1115; Dec. Dig. § 523.*] 8. WILLS (§ 552*) -CONSTRUCTION-STATUTES -PRESUMPTIONS. 3 Gen. St. 1895, p. 3763, § 34, provides that, when an estate shall be devised by will to any person, being a child or other descendant of the testator, or a brother or sister, or any deScendant of a brother or sister of such testator, and such devisee or legatee should, during the life of such testator, die, testate or intestate, leaving a child or children, or one or more descendants of a child or children, who shall survive the testator, the devise to such person dying in testator's lifetime, shall not lapse, but the estate shall vest in such child or children, or descendant, in the same manner as if the devisee or legatee had survived the testator, and had died intestate. Held, that such section does not include a case in which the legatee dies without issue, nor where it appears that the testator intended to make a bequest to a class as distinguished from the individuals composing the class at the time the will was made. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1191-1197; Dec. Dig. § 552.*] Bill by the Security Trust Company, administrator de bonis non with the will annexed of James Kennedy, deceased, against Mary Ann Lovett and others, to obtain a construction of the will. Will construed. The material provisions of the will are as follows: "Second: Item. I give, devise and bequeath all my estate both real, personal and mixed, of whatsoever name and nature wheresoever situate or to be found, of which shall belong to or be owned by me at the time of my death unto my beloved wife Margaret, to have and to hold the same during the term of her natural life. "Third: Item. That after the decease of my said wife Margaret, it is my will that my executors hereinafter named, shall sell and dispose of the real estate at public or private sale, at such times, and upon such terms, and in such manner as to them shall seem meet, and the proceeds from such sales be divided between my children Mary Ann Lovett, Rosanna Prickett, John Kennedy, Wiliam Kennedy, James Kennedy, Martha Allison, Margaret Kaighn, Louisa Graham, Rebecca Cavanaugh, Charles Kennedy and Laura Virginia Carroll, share and share alike, and one-twelfth part or share to be divided between Walter, James, Ralph, and Elizabeth Eisley, children of my deceased daughter Sarah Eisley, to which she would be entitled to if living. "Fourth: Item. Should either of my |