36 N.J. Eq. 426 | New York Court of Chancery | 1883
This suit is brought by the heirs-at-law of Cortenius S. Havens, deceased, late of the county of Monmouth, against the
The complainants allege that the deed, as originally drawn, conveyed only certain cedar swamp, and that since its delivery, it has been altered without the knowledge or consent of the grantors, so as to purport to convey also certain lands belonging to Havens’s wife (who was also the owner of ‘the cedar swamp) on Manasquan Beach.
Havens died August 3d, 1864. His widow is also dead. She died in 1871. Osborn died November 21st, 1865, leaving a last will and testament, by which he devised lands, but made no mention of the beach property in question. He did not devise it specifically, nor does his will contain any residuary clause. After his death, and in 1876, his son, Samuel S. Osborn, obtained a conveyance from his other heirs-at-law of all their undivided shares and interests in the property in question. The Havens deed was not then on record, and was not recorded until March 15th, 1878. That deed was drawn by Samuel S. Osborn ; its execution was witnessed by John S. Forman, now deceased, who also, as a judge of the court of common pleas of the county, took the acknowledgment. It was acknowledged on the 21st of June, three days after its date. An inspection of the deed shows many erasures and interlineations. Among the latter are the words, “rights of Manasquan Beach remaining unsold,” in the description of the premises intended to be conveyed. That the deed was altered after execution, is admitted by Samuel S. Osborn, in the answer.
The bill prays an answer on oath; that the Havens deed may be declared to be void, and the title of the complainants freed from the cloud which the record thereof casts upon it, and that Samuel S. Osborn and his wife, and any person holding under them or any purchaser from them, may be enjoined from setting up title against the complainants by virtue of the deed, or from
The bill alleges that Havens was in possession, in right of his wife, of the beach lands and swamp from the time of his marriage, in 1822, to his death, and that since then, the complainants, as his heirs-at-law, have been in possession thereof. The answer, on the other hand, denies that Havens or the complainants, or any of them, have been in possession of those premises or any part thereof since the conveyance by Havens to Osborn, and alleges that Abraham S. Osborn took full possession of the land and held it continually from the time of the conveyance up to his death, and that'since his death the property has been in the possession of the .defendants or some or one of them.
It is quite clear, from the evidence, that the beach lands in question have been in the possession of neither the one party nor the other since the Havens deed was made. At and ever since that time, up to a comparatively recent period, the land was of very little or no value; was used for no purpose by anybody, and was not enclosed, so that in determining the question presented in this cause, no aid is to be derived from the fact of possession since the making of the deed. As before stated, the answer on the part of Samuel S. Osborn admits that the interlineations and erasures which appear in the deed, were made after execution, but it alleges that they were made before acknowledgment and delivery. Judge Forman died, probably before this suit was begun, and Samuel S. Osborn is also dead. He died without giving any testimony in the cause. In the answer he makes the following statement: that he wi’ote the deed at its date (June 18th, 1845), and that Havens and his wife, at that date, signed it in the presence of Judge Forman, who then .subscribed his name as a witness to its execution that Havens and his wife then went away, leaving the deed unacknowledged and uninterlined, in his, Samuel S. Osborn’s, possession; that
It will be seen that not only is the alteration of the deed admitted, but it is also admitted that the note stating that the alterations were made before the deed was signed, was written by Samuel S. Osborn, over the signature of the subscribing witness, after the deed was executed. As has already appeared, all the parties to the conveyance are dead. The scrivener who drew it and the officer who took the acknowledgment are also dead.
On the part of the complainants, two witnesses, John C. Havens and Lydia Ann Havens (themselves two of the complain
These two witnesses both swear that the deed did not, when it was acknowledged, contain the interlineations and other alterations now seen upon it. Of itself, this testimony is sufficient to overcome the answer of Samuel S. Osborn on the subject. That answer is further impeached, however, by the testimony of Robert Estell and Lydia Ann Havens, of conversations had by Samuel S. Osborn with them. Estell swears that in the summer of 1876 or 1877, he owned a piece of property on the beach, and applied to Osborn to survey it for him; that in their conversation, Osborn-said to him that he thought there was quite a speculation to be made in buying up those beach rights (referring to the beach rights-in what the witness calls the “ Lawrence Lots ”), and that if he, Estell, would buy up a lot of them, he would locate them; that he asked Osborn who had beach rights to sell, and he replied that Richard Borden’s heirs had one-half of a seventh; that he asked him who the heirs were, and he said Joseph Borden and his sisters, and that Cortenius Havens’s heirs owned one-seventh;. Estell asked him where they lived, and he said that one of the boys lived in Brooklyn;' Estell asked him if he thought, if he
Lydia Ann Havens testifies that in January, 1878, Samuel S. Osborn came to her house and said to her, “ You know you own beach property, now it will soon come in market and will be valuable; ” that she replied, “ How will I know this ? ” and he said, “I will write and let you know.” She also says that at that time he had access to the old papers of the family; that he was almost a day taking copies of their old deeds, and that he had four or five sheets of paper written full. She adds that Osborn said to her, referring to their rights in beach property, “ When they come in market, don’t sell them to any one else; give me the first refusal, as they join me, and don’t let Estell have them anyhow.”
The statements of Samuel S. Osborn in the answer in reference to the alterations in question, are inconsistent and contradictory in a very material respect. In his first statement he says that after the deed was executed, it was left with him, and that the next day or the next day but one afterwards, Havens came to the storehouse of his father, and there instructed him to make the additions and alterations which appear in the deed. In the other statement he says that he himself suggested that it would be better to expressly designate the beach rights on Manasquan in the deed, and that thereupon Havens and his wife agreed, for the additional consideration of $5, that the alterations should be made. In his first statement he substantially says that the alteration was made at the suggestion and by the direction of Havens ; and in the other, that it was made on his own
Where, as in this case, a deed is attacked on the ground that interlineations and erasures have been fraudulently made to the prejudice of the grantor, and the grantee admits that the erasures, alterations and interlineations were made by himself after the deed was signed and witnessed, and that he himself wrote the note above the signature of the subscribing witness, certifying that the alterations and additions were made before signing, and alleges that the alterations and additions were made with the knowledge and consent of the grantor, and the note with the knowledge and consent of the subscribing witness, the burden of proof is upon him. On the part of the defendants it is urged, however, as before stated, that the deed, as originally drawn, conveyed the property in question. The subject of conveyance originally-stated in the deed, was—
“All our and each of our rights, titles, interests, estate, claims and demands, both at law and in equity, and as well in possession as in expectancy, of, in and to all our rights of cedar swamp, as called and known by Lawrence Surveys, as the one-half of two-thirds of one-seventh of fourteen-fifteenths, that was conveyed to David Curtis by Herbert Curtis” &c. (stating derivation of title) ; “also, one-third of one-seventh of fourteen-fifteenths, as conveyed” &c. (stating derivation of title), “together with all other of our rights of Lawrence’s Surveys of cedar swamp to which the said Kortenius S. Havens and his wife have right by their father, John Curtis, and by virtue of his last will and testament, and to which he, the said John Curtis, by virtue of his father, David Curtis’s, last will and testament, had good right, together with all and singular the hereditaments and appurtenances thereunto belonging.”
The deed has been altered so that the words, “together with all other of our rights of Lawrence’s Surveys of cedar swamps” Ac., now read “ together with all other of our rights of Lawrence’s Beach and cedar swamps” Ac. The defendants insist that the words “ Lawrence’s Beach and cedar swamps ” are descriptive of land which embraced the tract in question, but it is evident from an inspection of the deed, that, as before stated, the words “ Beach and ” have been written over an erasure of the words “surveys of,” and the letter “s” has been added to the word “ swamp ” in the same sentence. This clause in the deed not
"N. B. — The interlining and erasures in this deed done before signing.”
There were evidently some erasures in the deed at the time it was drawn, but they were words written, by mere inadvertence, and undoubtedly erased as soon as written. The note for $55, given by Abraham S. Osborn and Samuel S. Osborn to Havens for and on account of the consideration of the deeds, has no weight as evidence.
I am constrained to adjudge that the alterations in the deed, so far as concerns the rights of Havens and his wife in Manasquan Beach, are fraudulent. There will be a decree accordingly, and that no estate, right, title or interest of Havens and his wife, or either of them, in the Manasquan Beach property was conveyed or passed by that deed, and that the defendants and all persons claiming under Samuel S. Osborn be perpetually enjoined from setting up or claiming any title to the property, under or by virtue of that deed, and the defendants will be required to pay costs.