70 N.J. Eq. 231 | New York Court of Chancery | 1905
The complainant’s hill is filed by him in his individual capacity and as administrator of his deceased wife, against the two defendants, Mrs. Terry and Mrs. Smith, the sisters and heirs-at-law of his wife.
The general object of the bill is to have the absolute deed, under, which the wife at her death held the title to a hotel property at Asbury Park, called the Laurel House, declared to be only a mortgage given to secure the wife for the advances made or liabilities assumed by her in the payment of debts incurred by her husband in the purchase and improvement of the property. The money for the payment of these debts of the husband, amounting to about $6,000, was procured from the Long Branch P>anking Company, upon the individual note of the wife for that amount, on the transfer of the property to her by the husband, and it is claimed by the bill that the object of the conveyance to the wife was to secure her for the liability assumed, on the note, and that the note was subsequently paid out of the rents of the property. The entire indebtedness is alleged to be p>aid and a decree is asked declaring and directing a conveyance from the heirs to the complainant. The bill was originally filed by the complainant alone, but being in effect also a bill to redeem, including an account of the amount due on the mortgage, the administrator of the alleged mortgage was thought to be a necessary party, and at the hearing the bill was amended, by consent, making complainant a party in that eapacitjr. No claim, however, is made for rents received beyond the payment of the mortgage, and it is alleged by the bill that complainant, as well as his wife, had control of the rents after the execution of the deed. The circumstances under which the deed to the wife was executed wore as follows: The complainant, in July or August, 1883, agreed to purchase of Rev. George Clarke the land in question, which was then unimproved, for $8,000, and paid $200 on account of the purchase-money. In the fall of 1883 complainant, before securing title, commenced the erection of a large hotel building on the premises, which was ready for renting by May, 1884, and was then rented to a Mrs. Pemberton, for "three years, at $1,600 a year, besides $225 per year for the
The complainant, Mr. Clarke, the vendor, and Mr. Harvey, the attorney for Mr. Wilson, are the only survivors of the persons attending the meeting at Freehold, and their evidence is strongly relied on to support complainant’s claim. [Evidence here examined in detail.]
Complainant’s evidence as to transactions with the wife was admitted, subject to objection, and leave reserved to move to strike out the evidence at the argument. My impression at the hearing was that, under the ruling in Smith v. Burnet, 85 N. J. Eq. (8 Stew.) 314 (Court of Errors and Appeals, 1882), and Adoue v. Spencer, 62 N. J. Eq. (17 Dick.) 782, 794 (Court of Errors and Appeals, 1900), the evidence was inadmissible under the Evidence act (Rev. 1900, P. L. p. 363 § 4), excluding
*237 “testimony to be given by any party to the action as to any transaction with or statement by any testator or intestate represented in said action, unless the representative offers himself as a witness on his own behalf and testifies to any transaction with or statement by his testator or intestate, in which event the other party may be a witness on his own behalf, as to all transactions with or statements by such testator or intestate which are pertinent to the issue.”
The administrator being a necessary party in the suit, the rule considered by me in McKinley v. Coe, 66 N. J. Eq. (21 Dick.) 70 (1904.), to be settled in this court, that the evidence was admissible in suits against heirs or devisees to which the administrator was not a party, does not apply. Counsel for complainant urge that the evidence is admissible as evidence given by the administrator on his own behalf under the statute. The complainant was, however, called generally, and the evidence was given on his behalf individually and not specially on his behalf as administrator.
On a bill to have a deed declared a mortgagé, the interest of the mortgagor and of the personal representative is perhaps the same, so far as it involves the conversion of real estate into a personal security, upon which the personal representative is entitled to receive the amount due, but it is essentially an adverse interest in that it seeks to impose on the personal representative a contract of the testator under which the representative is bound to account under the mortgage. Regularly, therefore, the representative would be a party defendant in such suit, not a party complainant, and the fact that complainant is himself the representative, and must therefore be complainant in that character, does not make the evidence given by complainant tending to establish his claim against the personal estate evidence given by the representative on his own behalf, i. e., on behalf of the estate. Excluding the evidence of complainant as to the circumstances under which the deed was originally given, I do not think the evidence of Mr. Clarke and Mr. Harvey, the only other witnesses as to the facts transpiring at the time of execution of the deed, warrants the conelusion that the title was intendéd to be conve}red to the wife by way of mortgage only, and not absolutely. Their evidence must be taken in connection
Looking alone at the whole evidence relating to the circumstances up to the time of the execution of the deed, I find that this evidence is not sufficient to establish that the' deed was not an absolute deed, but a mortgage. And the further question is whether the evidence relating to the action, conduct or declarations of the parties, and especially of Mrs. Wilson, subsequent to the deed, either alone or taken in connection with the other evidence in the case, is sufficient to establish that the deed was originally intended as a mortgage. The intention of the parties at the time of the execution is the vital question, and the evidence of subsequent transactions is generally important only as authorizing inferences in relation t<5 the intention at the time. Frink v. Adams, 36 N. J. Eq. (9 Stew.) 485 (Vice-Chancellor Van Fleet, 1883); affirmed on appeal, 38 N. J. Eq. (11 Stew.) 287. But, in relation to their subsequent conduct, the relation of the parties has also an important bearing, for even if the original transaction was only for securing the wife’s obligation on the note, as the bill alleges, the subsequent investment in the
The evidence relating to the dealings of the parties—Mr. and Mi's. Wilson—with the hotel property, subsequent to the delivery of'the deed, including the evidence offered as to their declarations in regard to it, is substantially as follows: [This evidence is then examined in detail.]
Outside of the testimony of Mr. Wilson himself, the principal evidence of communications after the transfer between the husband and wife relating to the ownership of the property, are letters of complainant written to his wife, in October, 1897. At that time Mrs. Wilson was at the house of her sister, Mrs. Smith, in Asbury Park, having gone there in consequence of some quarrel or misunderstanding with- her husband. Mr. Smith, the brother-in-law, says that one cause pf the difference between them was Wilson’s refusal to give Mrs. Wilson the deed for the property now in question. Wilson came to Smith’s house to see his wife, and in the interview between them Mrs. Wilson accused her husband of having the deed, and of always claiming the hotel wasn’t hers, to which Wilson said: “I don’t claim the house; I have got ,no interest in the house; it is your property and it all belongs to you.” Wilson wrote several letters to his wife while she was at Smith’s house, urging her to return to their home, and in these letters her ownership of this property, and not his, is also asserted by Wilson, apparently for the purpose of reassuring her against his claims. One of October 8th is especially important as giving a statement of a bargain ■ in reference to the Laurel House. He asks her to come home and talk things over, and says that it is
“annoying for Mrs. Smith to tell yon yon had no property. It is all yours and a very fine property. You said after the Laurel House was out of debt yon were going to let me have so much a month, but after being here so many years I have nothing yet.”
In another letter he tells her that her property is increasing,
“the property is all yours and we have made several thousand, come home and enjoy it. Mrs. Smith knows she tells what is not so when she tells you you have no property. No one believes her and any goose knows better. All yours and all straight.”
These letters, written at the time when the question seems to have been directly raised between the husband and wife as to the ownership of this property and his alleged claims on it, cannot be reconciled with the view that both the parties intended the title to be taken only as security for debts or obligations, and it must require very clear and decisive evidence to the contrary to outweigh these admissions of the complainant, advisedly made, and made for the purpose of procuring her return. Had complainant’s present claim been then set up, Mrs. Wilson would have had the opportunity to defend her ownership, and the husband’s direct and unreserved admission of his wife’s ownership at that time has an important bearing on his right to contest it, after his wife’s death and at this lapse of time.
Mrs. Wilson returned to her home shortly after these letters were written, and lived with her husband up to the time of her death. After her return Mr. Wilson seems to have again taken charge of the hotel, leasing it and collecting the rents, and attending to the repairs and management of the property. One of the tenants, Mrs. Kemp, paid the rents by checks to his order, and these were endorsed by him and deposited, as he says, to Mrs. Wilson’s account in the bank where Mrs. Wilson kept her account. In all of the other tenancies the checks were made either to Mrs. Wilson alone or jointly to both, and all checks went ultimately to Mrs. Wilson’s credit. Mr. Wilson does not appear to have kept any separate bank account after the transfer of title, nor to have had resources of his own. It appears, also, that the expenses for the support of the family were paid from Mrs. Wilson’s income, including that received from the
In addition to the evidence above referred to, complainant relies on oral declarations proved to have been made by Mrs. Wilson subsequent to 1898, when she returned home. In some courts it is held that evidence of subsequent oral admissions by a grantee that an absolute deed was intended as a mortgage is not sufficient without corroborating circumstances to establish this fact. 1 Jones Mort. (5th ed.) 241 § 335, and cases cited, note (1/.). And certainly evidence of this character, in order to divest the title to lands and to overcome the effect of the previous conduct of the parties and written admissions of the husband, must be scrutinized with great caution, after the death of Mrs. Wilson, and be very clear and convincing.
In none of these conversations does it appear clearly that the attention of the wife was distinctly drawn to or fixed on the question whether this deed was only a mortgage or whether she had the right to hold the title to the property, if she chose to do so, and many of the declarations are such as may fairly be considered expressions indicating nothing further than that this hotel was an enterprise of Mr. Wilson’s, and not of her own, and that she had taken hold of it to save the money he had put in it, and that Wilson was managing the hotel.
[The evidence is then examined in detail.]
On the assumption that tírese conversations give in all respects Mrs. Wilson’s exact words, and giving them all fair effect, they are not sufficient, in my judgment, to outweigh the evidence as to the nature of the original transaction, which is supplied by the documents themselves, and the conduct and admissions of the parties under them, up to at least the jeax 1898. Mrs. Wilson’s account or explanation of any of them cannot now be heard, and bearing this in mind in considering the weight to be given to them on the questions now to be solved, viz., the agreement at the time of the transfer of title, or at the time of Mrs. Wilson’s subsequent investment of her money in the property by the payment and cancellation of the Patterson mort
Upon the whole evidence, I conclude that complainant has failed to make out a case for relief, and the bill must be dismissed.