30 N.J. Eq. 394 | New York Court of Chancery | 1879
This is a suit to foreclose a mortgage, dated December 31st, 1873, given by Daniel Sloan and his wife to Joseph S. Winston, on about twenty-one acres of land in Summit township, in Union county, to secure the payment of $4,465.87, on or before the 31st of December, 1875, with interest, payable half-yearly. The mortgage was assigned
Sloan is dead. He died August 12th, 1866. Mrs. Sloan, by her answer, insists that the complainant’s mortgage is invalid because, as she alleges, it was given under duress. She says that Winston obtained it by working on the apprekensions of her husband (then suffering from serious illness), through unlawful threats of arrest and imprisonment for crime falsely and groundlessly imputed to and charged upon him, by means whereof he was induced to gain her consent (which she gave merely to relieve him) to mortgage her property, the mortgaged premises, for Winston’s benefit.
In 1871, the mortgaged premises (the whole twenty-one .acres) were owned by Edwards, who, according to the statements of the answer of himself and his wife, in September of that year, conveyed it to Mr. Sloan and Granville A. Mendon, for the consideration of $21,000, subject to a mortgage encumbrance of $6,000 thereon. About the 6th of
Edwards and his wife, by their answer, deny the validity of the complainant’s mortgage for the same reason given in Mrs. Sloan’s answer, and set up the lien for unpaid purchase-money, alleging that Edwards, after the conveyance to Sloan and Mendon, held possession of the premises in accordance with an understanding that he should do so as security for-the payment of that money, and that that lien is entitled to priority over the complainant’s mortgage. They claim, also,, that he is entitled to subrogation in respect of the payment, by him after the conveyance to Sloan and Mendon of the $6,000 mortgage, subject to which the property was, as they allege, sold and conveyed to Sloan and Mendon. Kate-Edwards and her husband, by their answer, set up the-release to the former and insist on its validity. W. H. M. Sistare, by his answer, insists upon the priority of the Cross-man mortgage assigned to him, on the ground that it was. given to secure notes or endorsements of notes (or the-renewals thereof) given by Sloan and Mendon on account of the before-mentioned purchase-money. Mrs. Allen sets-up her mortgage upon the land conveyed to Kate Edwards,, and insists upon the validity of the release.
It appears, by the testimony, that the complainant’s mortgage was given to Mr. Winston by Sloan and his wife, in pursuance of the terms of a settlement of a claim which was-made by stockholders of a company located in the city of
Sloan continued to do business for more than a year after’ the giving of the mortgage. It is proved that in June, 1875, he made the arrangement (carried out on the 8th of July
When it is considered that between the time when the mortgage was given and the time when this certificate was made, a period of many weeks had elapsed—time enough for reflection and all needed advice—and that at the latter period the mortgage was still in the hands of Winston, who as yet had paid nothing under it, nor raised any money on it,- the fact that Sloan and his wife voluntarily gave this certificate to enable Winston to negotiate the mortgage, and to that end to induce the complainant to invest her money in it, is of no slight importance.
Mr. Crossman, who was sworn as a witness on the subject of Sloan’s incapacity, not only does not establish it, but, on the contrary, shows his full competency to transact business. He says that, as to his bodily health, he should think Sloan was then in good condition. He testifies, indeed, that he
By the agreement of settlement Winston agreed to pay the debts for which the mortgage was given, and to indemnify Sloan and his wife against them, and all costs &e. on account of them. Both he and Tooker swear that those debts have been paid. There is, indeed, evidence that some of them have not been paid, but much of that evidence is far from' satisfactory. Moreover, there is no evidence that Winston has not indemnified Sloan and his wife against the debts. And again, the answer of Mrs. Sloan sets up no defence on that head.
Nor is there any proof of the allegation, made in her answer, that the execution of the mortgage was not acknowledged in such manner as to bind her property. The certificate contains all the statutory requisites. The acknowledgment was made before a duly authorized person in New York, and the certificate required by law as to the authority of the person by whom the acknowledgment was taken, accompanied the certificate of acknowledgment. There is no evidence to overthrow the certificate of acknowledgment. That the officer by whom the acknowledgment was taken cannot recollect that he examined her separate and apart from her husband, arid that she cannot remember whether she was so examined or not, of course cannot countervail the certificate.
The claim of paramount lien for purchase-money has not been established. Edwards himself never claimed any lien on that account until after the commencement of this suit. When, before the complainant took the assignment of her
Nor is the claim made in the answer of Edwards and his wife, that the conveyance to the latter was merely by way of mortgage to secure the unpaid purchase-money, sustained. The only witnesses who speak oil the subject are Mrs. Sloan and Mrs. Edwards, and it is manifest that neither of them had any personal knowledge of such arrangement. All they know on the subject was derived from their respective husbands, who were, it seems quite probable, the real parties in interest. The arrangement for the giving of the two mortgages to Crossman was made between Sloan and Cross-man. The latter testifies as follows, in reference to it: “ Sloan was indebted to me, and, in order to cancel that indebtedness—Mr. Edwards had long wanted the property; in fact, he had wanted it ever since Mr. Sloan purchased it, and offered to buy it back of him, and he would buy it back and give me a mortgage to cover the entire indebtedness.” To the question, “ Then you say that he (Sloan) procured a mortgage from Charles P. Edwards and wife to you, upon this Summit property, to secure that indebtedness ?” he answered: “ Indebtedness! the reverse of that. I said that he sold this property to Edwards, and Edwards gave this mortgage to me, direct.” This was in June, 1875, and the deed from Sloan and his wife to Mrs. Edwards was made at that time, and Edwards and his wife then gave the two mortgages to Crossman. Crossman says he understood that his mortgages were subsequent to the complainant’s mortgage. The claim to subrogation is not established. Both of the mortgages, which were on the property when Edwards conveyed to Sloan, appear to have been cancelled of record, on the application of Sloan himself, and there is no evidence that Edwards paid or contributed to the payment of either of them.
The complainant insists that she is not bound by the release executed in favor of Mrs. Kate Edwards by Mr. Byrne, as her attorney in fact, releasing eighty-four one-
Mr. Byrne says that after Mr. and Mrs. Tooker returned to this country, the former found fault with him for having released the property, but it was merely because there was, as Tooker said, a building of some kind (his impression is it was a blacksmith’s shop) upon it. According to the proof, however, there was no building on the premises. Mr. Tooker says he expressed his dissatisfaction with the release, but it was expressed to Charles P. Edwards, not to Kate Edwards or her husband. It appears, beyond controversy, that the complainant received, with full knowledge of the circumstances, the amount paid by Kate Edwards for the property. Though Mr. Tooker says he tendered the money back, it was not to Kate Edwards but to Charles P. Edwards. The complainant is in equity bound by the release. She ought, if she had intended to repudiate the act of her agent, to have done so as soon as it came to her knowledge. She did not do so, but, on the contrary, received and retained, with full knowledge of the facts, the consideration of the release, and it was not until after she returned from Europe that any dissatisfaction was expressed in regard to it, and on the 9th of October, 1875, about ten months after the release was given, she allowed the consideration money of the release in her agent’s account. She has acquiesced in her agent’s action in giving the release, and she cannot now be permitted to repudiate it to the damage of the purchaser or the mortgagee—the former of whom, in reliance upon it, has made .large expenditures upon the property, and the latter, in like confidence, has loaned her money on the security of the premises.
There will be a decree in accordance with these views.