22 N.J. Eq. 453 | New York Court of Chancery | 1871
Erastus P. Sweet and wife, by deed of July 8th, 1858, conveyed to Charles Parker their homestead, in Trenton, for the consideration named in the deed of $900. On the 4th of October, 1862, Charles Parker died, leaving a will. After certain bequests, the will directs his property, personal and real, to be turned into money by Joel Parker, his son and executor, and held by him in trust for the other children of testator, to wit, Charles Parker and Mary Ann Glover, during their lives, and afterwards to their children, if any, on coming of age.
The bill is filed to have this deed declared a mortgage • alleging it to be only a security for indebtedness, given on the grantor’s agreement to pay interest at six per cent, yearly while the indebtedness continued; he to remain in possession and pay all taxes and needed repairs, and to have the premises re-conveyed on payment of principal and interest due. It prays a re-conveyance by the executor under the will, or by the three children, defendants in the suit, on payment as above, and asks an answer without oath.
The defendants in answer deny the allegations of the bill, and set out their reasons for believing the deed to be absolute according to its terms. They say they are willing and anxious that whatever is just and equitable should be done, but as minors are interested in the ultimate disposition of the estate, and as the deed is without qualification or condition on its face, so far as they know, they deem it their duty to require the complainant to prove strictly his claim, and submit the matter to the decision of the court.
Five witnesses were sworn for the complainant, of whom
It is further objected that necessary parties are wanting in the bill — that the children of Mrs. Glover, who, on her death, take under the will, have an interest in the fund to be affected by the suit, and should have been joined as defendants with their mother and the executor and trustee. This objection was not raised by demurrer, or till the hearing ; but if the parties be necessary to the final determination of the cause, the objections must prevail. Many exceptions exist to the general rule that in equity all must be parties who have an interest in the object of the suit. The reason or principle of such exceptions is stated as follows in Calvert on Parties, sec. 2, p. 20 : “ If they are required to bo
As to the true character of the deed — whether a security which the complainant is entitled to redeem — the evidence consists of the declarations of the testator, made to Israel Howell and Daniel Fell about the time it was given; of the course of the transactions between complainant and himself to the time of his death, the. former continuing in possession, making needed repairs, and paying taxes and interest on the amount of the debt; of the manner in which the indebtedness arose, a part of it existing at the date of the deed, and the balance arising
The efficacy of the parol evidence is not to establish an agreement to reconvey, the specific performance of which this court will enforce, but to establish the true nature and effect of the instrument, by showing the object for which it was made. It is well settled that this may be done. The question is, whether the transaction was a sale and conveyance, coupled with an agreement for a re-conveyance, or whether it was a security for a loan. Any means of proof may bo used to show it to bo the latter: the declarations of the parties; the relations subsisting between them; the possession of the premises retained by the complainant; the value of the property, compared with the money paid; the Tinderstanding that the sums advanced should be repaid, and the payment of interest meanwhile on the amount. The distinction between parol ovidonce to vary a written instrument, and parol evidence showing facts which control its operation, is employed to reconcile the allowance of such proofs with the statute of frauds, and the general rules of common law. Deeds absolute on thoir face have been frequently decreed to be mortgages by this court, and the grantors allowed to redeem. Phillips v. Hulsizer, 5 C. E. Green 308, and the cases there cited. In Thornbrough
It is plain from the proofs in this case, that the testator’s original purpose was beneficial to Sweet, and as such, was carried out while he lived. His death, and the interest of the minors under the will, necessitated a resort to this court, which I am satisfied would not have been required had he wed, or had either of them anticipated the situation of the property, as affected by his death. Under the facts, as established, I am of opinion, and respectfully advise, that the deed be decreed to be a security, and the complainant entitled to redeem, on payment to the executor of the principal sum of $1078.25, with interest at the stipulated rate of six per cent, yearly from the last payment of interest, together with the defendant’s costs of this suit; such payment to be made within ninety days from the first day of this term, and the premises to be thereupon conveyed to the complainant by the executor, under the authority of the will and of the decree.