8 N.J. Eq. 886 | N.J. | 1853
The bill alleges that, on the 15th day of Sept., 1830, Elizabeth Arnwine, the mother of the appellant, and the grand-mother of the respondent, conveyed to the respondent a valuable tract of land in the township of Amwell, in the County of Hunterdon, of the value of six thousand dollars ; that the consideration of the said conveyance was the sum of two thousand dollars; that this consideration money was not paid, but that at the time of the conveyance it was the agreement between the parties to it, that the grantee •should pay the consideration money, upon and after the death of •the grantor, to the appellant, in such sums and at -such times as the appellant might require; that in the mean time, until her death, the grantor should enjoy the -possession of the property ; that the deed was delivered, and to secure to the grantor the possession until her death, the grantee executed to her a lease.
Elizabeth Arnwine is dead, and the complainant, by his bill, now calls for the payment of the consideration money of two thousand dollars.
This is the appellant’s case, as it is made by the bill.. It is •fully denied by the answer, and the burthen of proving it rested, •of course, upon the complainant in the bill. If the case is not proved, it is unnecessary to decide, whether, or how, the principles of law discussed on the argument are applicable to the case. Whether this is to be considered a trust, or what kind of a trust, or whether it should be in writing, are questions of no importance, in deciding this controversy, if the appellant has not proved his case.
It is evident that no monied consideration was paid by the
The appellant, to support this allegation, so important to him, and which, indeed, is the foundation of his case, relies upon the ■declarations of Elizabeth Arnwine, made subsequent to the exe
In reference to this testimony, it is to be noticed, in the first place, and as a matter of vital importance to its'applicability and efficiency, that not a declaration of Elizabeth Arnwine, or a declaration, or admission, of the respondent, of any such promise or agreement on the part of the respondent as that alleged, was proved to have been made in connection with, or in reference to, the deed in question, or its consideration.
Take the testimony of Elizabeth Warford, the mother of the respondent, and of Margaret Snooks, the complainant’s daughter. These are the important witnesses for the appellant. It. was not argued by counsel, that the case could be sustained without their testimony.
Elizabeth Warford testifies, that she was at the bed-side of Elizabeth Arnwine at her last sickness. The respondent was there. She' says : “ Then she called defendant up to the bedside, and likewise called me to come and sit down by her, which I did. She told me, that she found defendant a little honry in little things that he was to do. Now, says she, he has promised to pay complainant two thousand dollars. She said, she was now at her last sickness ; that she would never live to get well. She said to me, Betsy 1 I want you to see to him, (and defendant was present.) Defendant said, 0! grand-mother, I will pay uncle Jacob two thousand dollars, honestly.” In this conversation, not a word was said about the' deed. No allusion was made to adeed ; for, on the morning after Mrs. Arnwine’s death, this witness expressed her. surprise upon hearing from the respondent that he had the deed in question. A conversation between this witness and the respondent is relied upon. This conversation referred to the promise which the witness heard the respondent make to his grand-mother,„and being reminded by her of that promise, not in a very kind way, he neither admitted or denied it. How can what this witness testifies to be construed
Margaret Snooks5 testimony as to a promise on the part of respondent, is not as strong as that of Elizabeth Warford. Not one word was said in her presence, either by Elizabeth Arnwine, or Carroll, respecting the deed. If any such promise, as that testified to, by either Elizabeth Warford or Margaret Snooks, was made, it was a mere nudum pactum, and cannot be enforced either at law, or in equity. It falls very short of proving the «ase made by the bill, that tlie consideration of the deed was two thousand dollars, to he paid the appellant, upon, and after the death of his mother, in such sums as he might require.
A promise, by respondent, to pay the appellant two thousand dollars, or an admission of such a promise, is testified to by several witnesses ; but there is not one particle of, either positive or circumstantial evidence, to connect such promise, or admission, with the deed. The only circumstance, of any connection, or relationship, between the promise and the consideration expressed in the deed, is the fact, that there was a correspondence, in the amount of money named. The consideration of the. deed was $2,000. The promise was to pay $2,000. Admitting the promise, then, to be satisfactorily proved, it can entitle the appellant to no relief. To make out bis case, upon which he relies,, he must go a step further, and must prove, that the consideration of that promise was the deed, made and executed to John A., Carroll by Elizabeth Arnwine. Having failed in this, the' Court is not called upon to determine, whether, if the case made by the-bill had been proved, they could have afforded the appellant any relief in this suit.
The decree of the Chancellor must be affirmed, with costs; and the record remitted, that the cause may be proceeded in according to law.
' Cornelison, Huyler and Valentine, Judges, dissented*.
Decree affirmed.