24 N.J. Eq. 378 | New York Court of Chancery | 1874
On or about the 20th of November, 1866, Phebe R. Shot-well executed and delivered to her son, Archibald A. Shotwell, her bond, dated April 1st, 1862, in the penal sum of §8000, and conditioned for the payment, by her to him, at any time during her natural life, of the sum of §4000, with interest at six per cent, per' annum, and at the same time executed and delivered to him her mortgage of the same date, on two lots of land in Hackettstown, in the county of Warren, to secure the payment of that bond. The mortgage was duly recorded on the 21st of November, 1866.
On the 22d of July, 1865, Mrs. Shotwell executed and
On the 9th of September, 1872 — nearly six years after the delivery of the mortgage — the complainant filed his bill in this court, praying that the defendant might be decreed to cancel the mortgage of record, or to deliver it up to the complainant to that end, or that it might be declared to be fraudulent and void, and of no effect as against the land conveyed to the complainant.
This relief is sought on the ground that the mortgage was without consideration; that Mrs. Shotwell was not indebted to the defendant; that she did not knowingly execute the mortgage, but it was obtained by fraud and false representations, and threats of personal violence, made by him to her; and that when the mortgage was executed, the defendant knew of the existence of the deed to Fanny, which was then unrecorded.
The defendant in his answer alleges that the deed to Fanny was wholly voluntary; that the complainant had full knowledge that it was merely voluntary, long before he took his conveyance from Fanny, and that the defendant had no notice of the existence of that deed when he took his mortgage ; that the complainant’s deed was also merely voluntary; that before and about the time when the mortgage was executed, the defendant and his mother examined and settled their demands against each other, and they then found that there was due from her to him, on the date of the mortgage, April 1st, 1862, the sum of $4000; that she then acknowledged her indebtedness to him in that amount, with interest from the last mentioned date, and to secure it to Mm executed and delivered the bond and mortgage to him ; that the mortgage was executed and acknowledged by her before a commissioner,
The principle on which relief is given in cases like the present, is well enunciated in Martin v. Graves, 5 Allen 601. “ Whenever a deed or other instrument exists, which may be vexatiously or injuriously used against a party after the evidence to impeach or invalidate it is lost, or which may throAV a cloud or suspicion over his title or interest, and he cannot immediately protect or maintain his right by any course of proceedings at laAV, a court of equity Avill afford relief by directing the instrument to be delivered up and canceled, or by making any other decree Avhich justice and the rights of the parties may require.” The complainant alleges that the defendant’s mortgage was taken Avith full notice of the existence of the previous conveyance, by deed then unrecorded, of part of the mortgaged premises, by the mortgagor to the grantor of the complainant. He asks, on this and other grounds, that it may be declared to be of no effect as against his property. Where it clearly appears that a mortgage has been taken Avith full notice of a valid conveyance, good against the mort
The bill states that the mortgage Avas Avholly Avithout consideration, and was obtained by fraud, false representations, and threats of personal violence. There is no attempt to prove any of these charges, except as the complainant claims
The responsive denials and statements of the answer on the subject are not overcome. They are repeated by the defendant in his testimony. His statement in his answer and in his testimony, that there was a settlement between him and his mother about the time of giving the mortgage is corroborated by her, as is his statement that the evidences of debt which he held against her, and which were taken into account between them in that settlement, were delivered over to her. She admits that she destroyed them. She was sworn for the complainant, and on cross-examination admitted that she and the defendant talked about her giving the mortgage a dozen times during a period of íavo months before it was executed. Though she denies that she was indebted to him at that time, yet her testimony is of so contradictory and untrustworthy a character that but little if any weight can be given to her denial. The theory of the complainant is that the defendant then was and always had been his mother’s debtor. But this theory is exploded by the fact that it appears that she had, without his knowledge or authority, about April, 1866, collected §800 of his money on a mortgage, which he, when he had gone out west, had left among his papers in her house. He says she has never yet accounted for it; that, though this money was received by her before the settlement, he know nothing about it when the settlement was made, and it was
The statement in the bill as to her ignorance of the character of the mortgage she gave to the defendant is not sustained even by her testimony, and is disproved by the testimony of the commissioner.
My consideration of the evidence in this case leads me to the conclusion that the mortgage was given voluntarily, and not through fraud, false representation, or any duress; that the proof would not justify me in holding that the defendant when he took it had notice of Fanny’s deed; that that deed was a voluntary deed, without consideration, and that if it were otherwise, and the defendant had notice of it, the title which Fanny held is now held by the complainant in trust for. his mother, who is the real complainant in this suit.
This case does not appear to me to be that of a bona fide purchaser seeking to remove a cloud from his title, but seems rather to present the features af an ill-sustained effort on the part of a mother and some of her children, to rid the prop
The bill is dismissed, with costs.