WALKER, Ch.

Suit by Caroline N. Schenck against William Yard and others. On motion to dismiss the bill. Proceedings stayed for the purpose stated.

Vroom, Dickinson & Scammell, of Trenton, for the motion.

Sweeney & Scoppettone, of Newark, opposed.

WALKER, Ch. On Monday, April 22, 1912, one of the complainant's solicitors called at the office of the clerk in chancery and filed the bill of complaint in the above-stated cause, first asking the docket clerk if any other bill had been filed in the same matter, and, receiving "no" for an answer, requested him to mark the time of filing on the bill, which was done; the hour noted being 8:10 a. m. Later in the morning the docket clerk opened the mail which was directed to the clerk in chancery and which had been delivered in his office prior to the filing of the bill in this cause, and found therein an envelope directed to the clerk containing a bill of complaint entitled William H. Yard v. Caroline C. Curtis et al., and, following a rule which has long obtained in the clerk's office, he filed that bill as of the preceding day, or rather the preceding secular day, namely, Saturday, April 20, 1912.

On June 26, 1912, William H. Yard, the complainant in the last abovementioned suit and one of the defendants in this suit, gave notice to Caroline N. Schenck, the complainant in the suit against himself and others, that on Tuesday, July 30th, then next, he would move for an order dismissing her bill and enjoining her from further prosecuting proceedings in her suit, or for such further or other relief as might be equitable and just, upon the ground that another suit for the same cause of action between the same parties had been instituted and filed prior to the filing of the bill in the above cause. Previous to the hearing of this motion, counsel for both parties appeared before me informally at side bar and stated the above facts and asked me which suit was entitled to priority. Without any opportunity for reflection, I expressed the opinion that the bill which was actually filed first was entitled to priority, but no order embodying that conclusion or providing for the carrying of it into effect in any way was ever presented to me. At that time I took occasion to observe that the custom of the office of filing bills received in the morning mall as of the day before could not be supported as a legal proposition.

Proofs were submitted on the present application in the shape of an affidavit by the docket clerk, who deposes that he has held his position for 10 years last past, and that it has been his custom during all that time to file as of the day before all bills which have come in through the United States mail and have been so received in the clerk's office before 12 o'clock in the morning of any given day, and that bills received from solicitors or messengers have been filed as of the timereceived; that on the day the complainant's solicitor filed the bill in this cause at 8:10 a. m. there was already on his desk, but unopened, the mail directed to the clerk in chancery, and that the bill in the other cause must either have been filed on the Saturday before or must have been contained in the mail received by him which was on his desk before 8 o'clock on the morning of April 22d. Mr. William A. Wells, an attaché of the chancery office for 36 years, also made an affidavit, and in it deposes that he well knows the custom and practice of the office, having filled nearly every position in it; that he knows the custom has been, during all of that time, to file bills received in the early morning mail, which are brought to the office between 7 and 8 o'clock, as of the day before; and that bills brought in by solicitors or messengers are filed as of the day when actually received.

I adhere to the observation which I made at the time the solicitors were first before me, that the custom of the office of filing bills prior to the day upon which they are actually received has not, because it cannot, ripen into law, no matter how long the practice has been persisted in. As well might a party having a deed or mortgage for certain premises mail the same to the appropriate county clerk or register and claim that he was entitled to priority over a deed or mortgage actually delivered to the clerk prior to the reception by him of the other instrument through the mail, if his deed or mortgage were actually deposited in the post office or a letter box first. If the time of depositing a pleading or other document in the mail is to constructively operate as its filing or recording in the proper official depository, then as well would such paper be entitled to be docketed any number of days before its actual reception by the proper officer as one day, provided the mailing took place a certain number of days instead of one day before it reached its destination. And what of documents lost in the mail? Would office copies or substituted originals be filed or recorded upon affidavit showing such loss, in cases where it becomes important to the party interested to have the record made up as of a given day? I think not. The only way to file a bill is to file it, and any person who intrusts one to the mail or a messenger does so at his peril. The mail service is surely not the agent of the clerk, but may be made the agent of a solicitor by his use of it as a channel of communication between him and the clerk.

This aspect of the matter, however, does not decide the question. It may be that the bill in Yard v. Curtis should be held to have been filed before that in Schenck v. Yard upon the ground that it was actually in the clerk's office before the bill in the latter case was presented for filing. Whether so or not, the question at issue does not depend upon this fact, and therefore it will not be decided. There are other and deeper questions involved in the controversy, and they will now be considered.

While the objection that another suit is pending for the same matter is in general taken by plea and not by motion (Van Houten v. Stevenson, 69 N. J. Eq. 627, 64 Atl. 1094), nevertheless, no objection being made upon that score, this matter will be disposed of on the motion made.

In Dan. Ch. P1. & Pr. (6 Am. Ed.) *632, it was laid down: "Where a bill seeks relief, a defendant may plead that there is another suit already depending, in this or in another court of equity, for the same matter. This plea corresponds with the exception litis pendentis of the civilian, and is analogous to the plea, at common law, that there is another action depending. Hut, although it is necessary that the first suit should be for the same matter as the second, the second suit need not be for the whole matter embraced by the first; it is, however, requisite that the whole effect of the second suit should be attainable in the first, and, if it appears upon the face of the plea that this is not the case, the court will at once overrule it. It sometimes, however, happens that the second bill embraces the whole subject in dispute more completely than the first; in such cases, the practice appears to be to dismiss the first bill with costs and to direct the defendants in the second cause to answer, upon being paid the costs of a plea allowed, which puts the case upon the second bill in the same situation that it would have been in if the first bill had been dismissed before the filing of the second."

Assuming that the complainant in this suit is right in her contention that her bill was filed first, it appears by an inspection of both bills that the other one "embraces the whole subject in dispute more completely than the first," and this, according to the practice, would appear to require the dismissal of the first bill with costs and a direction that the defendants in the second cause (complainants in the first) answer upon being paid their costs, which puts the case upon the second bill in the same situation that it would have been in if the first bill had been dismissed before the second was filed.

The primary object of these two suits is the partition of the real estate of which the late Mary M. Yard died seised, and which remained to her estate on the death of the beneficiary for life. The parties are the same in both suits, except in that in Yard v. Curtis Judge Bennett Van Syckel and the Trenton Trust & Safe Deposit Company, mortgagees, respectively, of two of the tracts sought to be partitioned, are made parties defendant. There is no allegation in the bill as to the date of the making of these mortgages, nor by whom made, so that it cannot be told by looking at it whether they were made in the lifetime of Mrs. Yard, or by her devisees or some of them after herdeath. This may be important because the authority for making mortgagees defendants in partition suits is a creature of the statute and extends only to mortgages upon undivided shares or interests. 3 Comp. Stat. 1910, p. 3912, § 54 et seq., as construed in Van Houten v. Stevenson, 69 N. J. Eq. (3 Robb.) 626, 627, 64 Atl. 1094.

The bill in Schenck v. Yard alleges that the defendant William H. Yard is in the possession of the whole of the premises No. 132 East Hanover street, Trenton, to the exclusion of the complainant and her cotenants, and that a valuable summer cottage at Belmar, which had been rented to different people during different seasons, was not rented at the time of filing the bill (April 22, 1912), and prays for the appointment of a receiver for those properties and for an accounting of the rents, issues, and profits of the premises while in the possession and occupation of William H. Yard.

The bill in Yard v. Curtis goes further and alleges that Mary M. Yard, the ancestor of the cotenants, made her will January 6, 1899, in which, among other things, she gave, devised, and bequeathed all the rest and residue of her estate and property (including the premises sought to De partitioned by both bills) to her son William H. Yard, in trust, nevertheless, for the sole use, benefit, care, and support of her husband, William S. Yard, during the term of his natural life, with power and authority in the trustee to receive the rents, issues, and profits; to sell at his discretion either at public or private sale any part or all of her real estate and personal property, and the interest received from the investment of the same, and the rents, issues, and profits of both the personal and real estate, together with the principal, for the sole use, benefit, care, and support of her husband during the term of his natural life; and in the fourth clause directed that after the death of her husband, in case any of her estate should remain in the hands of her trustee, that it should be divided equally between her children.

Mrs. Yard died December 9, 1901, and in the month of January ensuing William H. Yard took upon himself the administration of the estate and the duty devolved upon him as trustee and continued to exercise the same from thence until the death of his father, the beneficiary, which occurred in August, 1911. The bill then alleges that William S. Yard in his lifetime refused to leave the house No. 132 East Hanover street, Trenton, where he lived with his wife at the time of her death, or to relinquish his right to it as his abode, maintaining that it was the duty of the trustee to support him in that house with the same comforts and luxuries which he was accustomed to, so long as there was money enough in the estate to so provide. The trustee complied with this request and from time to time made sale of some of the houses and properties belonging to the estate, and used some of the issues and profits to liquidate the expenses incurred in the management of the property and in the maintenance of Mr. Yard. The trustee avers that he frequently applied to the other person interested in the residuum of the estate to approve his accounts and for a sale of the properties undisposed of by him and the application of the proceeds toward the repayment of the moneys which he had expended and advanced in accordance with the spirit and intent of the will, he to distribute the balance remaining after his advances had been paid among the persons entitled thereto, with which requests they failed and refused to comply. Annexed to the bill is an account of his trusteeship running from December 1, 1901, to January 9, 1912, showing receipts of $7,974.50, and expenditures $20,042.40. The complainant in Yard v. Curtis claims a lien upon the properties, or the proceeds of the sale thereof, for his disbursements in the care and management of the estate and the support and maintenance of the beneficiary during his lifetime, and this under the terms of Mrs. Yard's will; thus calling for a construction of that document, if necessary, and for an accounting under it.

The other bill, that in Schenck v. Yard, avers the death of the mother, the making of the will in favor of the father, his death, and that there then remained in the estate the tracts of land in the bill described; that the defendant William H. Yard is in possession of the whole of the house No. 132 East Hanover street, Trenton, and the Belmar summer cottage was not then rented; then shows the undivided shares of which the parties are seised in and to the premises; shows that the complainant is desirous of a partition, or sale if need be, and prays for such partition or sale, and that an accounting may be taken of the rents, issues, and profits while the premises were in the possession and occupation of William H. Yard, etc.

It will be seen that the bill in Schenck v. Yard only prays for an accounting by the defendant William H. Yard for his possession and occupation of the Hanover street house, Trenton, while his bill against the other parties alleges a right to lien upon all the premises, or the proceeds of the sale thereof, for disbursements under the terms of his mother's will, which, as observed, calls for a construction of that document, if necessary, and for an accounting under it in any event. Therefore the brother's bill is broader than the one brought by his sister.

Another thing, the complainant in Schenck v. Yard, if she relied upon dismissing the suit of Yard v. Curtis, because her bill was filed first, should have been diligent and moved expeditiously in the matter. That these parties are entitled to a partition ofthe remainder of the premises of the estate of the late Mary M. Yard, and for the settlement of the matters in difference between them concerning that estate is a substantive right. Which one of them is entitled to maintain a suit as complainant for enforcement of that right concerns a mere matter of procedure and may be said to be technical.

Chancellor Green, in Crowell v. Botsford, 16 N. J. Eq. 458, said: "Where a party seeks to set aside the proceedings of his adversary for an irregularity which is merely technical, he must make his application for that purpose at the first opportunity. If a solicitor, after notice of an irregularity, takes any step in the cause, or lies by and suffers his adversary to proceed therein under a belief that his proceedings are regular, the court will not interfere to correct the irregularity, if it is merely technical."

An inspection of the record in Yard v. Curtis discloses the fact that a subpoena ad respondendum directed to Mrs. Schenck, the complainant in Schenck v. Yard, was issued April 22, and served upon her April 30, 1912. It was returnable on May 10, and on June 24, 1912, a decree pro confesso was entered against her and certain of the other defendants in the cause. Not only that, but on April 23, 1912, the complainant in Yard v. Curtis filed a petition for the appointment of a receiver in that case and obtained thereon an order to show cause returnable on May 7th then next. On the return day of this order counsel for Mrs. Schenck in Schenck v. Yard filed a petition for receiver in that cause, and an order to show cause was made thereon returnable on May 14th, and the order to show cause in Yard v. Curtis was adjourned until that date. On the last mentioned day both matters came on to be heard before Vice Chancellor Lewis, who advised an order appointing a receiver in Yard v. Curtis, but made no order in Schenck v. Yard. Therefore, it appears, this court, through its receiver, is, to some extent at least, managing this estate in the cause of Yard v. Curtis.

In this posture of the litigation, the duty of the court seems plain. It is to stay proceedings in this cause (Schenck v. Yard) and permit the matters in difference between the parties to be threshed out in the other case (Yard v. Curtis). Notwithstanding the decree pro confesso in the latter suit, the parties against whom the bill has been taken as confessed are entitled to be heard on the question of the amount to be allowed to William H. Yard for the upkeep of the property and the support of his father; only the question that he is entitled to whatever shall be proven to be just and reasonable in that regard is settled against them by the decree pro confesso. May be the defendants in Yard v. Curtis did not answer because they believed that such rights as they may have would be settled in Schenck v. Yard, and, that cause being stayed, I will hear an application on behalf of any of the defendants in that suit, against whom the bill has been taken as confessed, to open the decree pro confesso, if they should be advised to make such an application. If made, it must be on notice and must be made promptly.

One thing more: The complainant in Schenck v. Yard is entitled to a proper allowance for costs and counsel, and such award will be made when allowances are made in Yard v. Curtis at the termination of that suit.