64 N.J. Eq. 773 | N.J. | 1902
The opinion of the court was delivered by
(after stating the facts as above).
The absence from the decree appealed from of any finding of the jurisdictional ground taken for invalidating the release, seems to justify a brief reference to the subject of jurisdiction. The right to an accounting in equity does not exist in favor of the complainant unless and until his deed of release is swept from his path. While that remains, his way is barred. Pie is, until it is displaced, effectually estopped by its clear and explicit terms from enforcing any right he might otherwise possess to a further share in the real and personal property of his testator. The share or interest which prior to the delivery of his lease was vested in him jointly with the defendant, became, after its delivery, the separate and absolute property of the defendant. If, under the evidence, there was no jurisdictional footing to set ■aside lire release, his bill, it will be conceded, should have been dismissed. There being no mutual mistake, alleged, there could have been no relief granted for the reformation of the instrument on that ground, as this court has repeatedly held—Green v. Stone, 9 Dick. Ch. Rep. 387; Herron v. Mullen, 11 Dick. Ch. Rep. 839—nor has the complainant placed himself, by the form of his bill, in a position to ask for a rescission on the ground of a mistake on his part. See cases, supra. The sole frame of the bill is that the release was obtained from the complainant
The conjectural character of the decree below is evident from the following terms, used in the conclusion in denying an accounting urged by the defendants, viz.: “But I think that an accounting must be refused for the simple reason that a reperusal of the evidence satisfies me that it is impracticable to take it. There are no data in existence from which a master could arrive at any just conclusion capable of being stated in dollars and cents. * * * The result is necessarily founded somewhat upon conjecture.”
But there is a further ground for the rejection of the claim of the complainant by a court of equity. Iiis release has stood unchallenged by its author upon the records of the titles to property in the public office for the long period of nine years and
In Doughty v. Doughty, 3 Halst. Ch. 643, in an opinion read by Chief-Justice Green, where the instrument of settlement, sought to be avoided for inadequacy of consideration and fraud (charges of unsoundness of mind of the complainant also being made),
In Gifford’s Administrator v. Thorn, 1 Stock. 702, where the deed of assignment and release attacked was of a residuary estate worth a sum very largely in excess of the amount actually received and mentioned in the paper, this court held that it was not reasonable diligence for the party, “where there is no disability and no impediment to the vindication of his rights, to lie passive for twelve years and to call on a court of equity for aid, when the lapse of time and his own laches may have deprived his adversary of the means of defence;” and the complainant’s bill was dismissed.
In Trustees of East Newark Co. v. Gilbert, 1 Beas. 78, where the bill was filed (to set aside a deed of conveyance, on the ground that it was fraudulently procured) on the 5th of October, 1857, “nearly four years after the conveyance,” Chancellor Williamson held that the injunction should be dissolved, because the complainants should have filed their bill promptly.
In Brown v. Mutual Benefit Life Insurance Co., 5 Stew. Eq. 809, in affirming a decree advised by Vice-Chancellor Van Fleet denying the defendant’s efforts to repudiate his deed, this court held that if a party would avoid a deed on the ground of fraud or forgery he is required to interpose the objection promptly. The effort in this ease was to invalidate a power of attorney and mortgages executed about ten years prior to suit brought to question those instruments, and this court held the delay was too great.
In Swayze v. Swayze’s Executors, 10 Stew. Eq. 180, it was held, in an opinion filed by Vice-Chancellor Bird, that “where matters of account were equally within the knowledge of both parties, and there was no surprise, but considerable deliberation, and complainant allowed the settlement to stand for five years unquestioned, the court will not disturb it.”
In McCartin v. McCartin’s Administrators, 18 Stew. Eq. 273, this, court, upon the point under discussion, affirmed the decree advised by Vice-Chancellor Van Fleet dismissing the complain
In Coles, Administrator, v. Vanneman, 6 Dick. Ch. Rep. 323, on appeal from a decree advised by Vice-Chancellor Bird, dismissing complainant’s bill for laches, this court affirmed the decree and held that eight years’ delay—-from August, 1877, to August, 1885—by parties interested, in seeking redress from a receipt in full which was endorsed upon a mortgage at the time of its surrender by the owner, resulting in its cancellation, amounted to inexcusable laches. The suit was brought by the representative of the surrenderer against the surrenderee alone, no rights of third parties having intervened. The allegations of the bill resembled those in the present case in that they charged that the mortgage, with its endorsement, was obtained from the owner by unfair means. While the court expressed doubt as to the weight of evidence upon a question of the fairness of the transaction in the procuration of the receipt in full, in view of the mental infirmities of the owner, it held that the failure of himself and his family, who knew about the transaction, to question the matter by suit for so long a period was fatal. These adjudications, it will be noted, are based chiefly upon the idea of the injury that .might have ensued from the loss of testimony through the impairment of memory of witnesses and other causes by reason of delay, and not upon evidence of any actual loss of testimony or proofs.
The case of Tynan v. Warren, 8 Dick. Ch. Rep. 313, remains to be considered. Vice-Chancellor Green there held that “the rule that laches in bringing suit will deprive one of his remedy, is not applied unless such neglect has so prejudiced the other party, by loss of testimony, or means of proof, or changed relations, that it would be unjust now to permit him to enforce his rights.” While the decree in this case was reversed, upon appeal, by this court (see 9 Dick. Ch. Rep. 402) upon other grounds,
For the reasons stated, I think the decree below should be reversed and the bill dismissed.
For reversal—The Chiee-Justice, Van Syckel, Dixon, Collins, Foet, Garretson, Hendrickson, Bogert, Vreden-BURGII, VOORI-IEES, VrOOM-11.
For affirmance—None.