Opinion
02-04-1895
FLYNN v. FLYNN et al.
Rutherford Coleman, for complainant. Philip S. Scovel, for defendants.
Bill by Harry A. Flynn against James Flynn and others, excepting to accounting of master in chancery. Decree for exceptant.
Rutherford Coleman, for complainant.
Philip S. Scovel, for defendants.
GREEN, V. C. This bill is filed for partition of lands, the title to which stood in the name of Mary Flynn, who died unmarried and intestate, leaving the various parties to the suit, her heirs at law. The case was tried before me, and in my conclusions filed I found with reference to the tract of land In Bordentown, Burlington county, conveyed by John L. McKnight and wife to Mary Flynn, that there was a constructive trust therein in favor of James C. Flynn, her brother, one of the defendants, to the extent of the money he had actually paid on account of the purchase money, and that, subject to such trust, the property descended to the heirs at law of Mary Flynn; that it was not equitably devisable among them, and should be sold, and the proceeds divided, first, to James, the amount to be found due him, and afterwards, to the heirs at law, in the proportions named in said conclusions. An order was made referring the matter to Samuel W. Belden, Esq., as master, to take and state an account of the amounts actually paid by James C. Flynn for and on account of the purchase money of the said property. The said master was authorized to use the testimony and exhibits before taken and produced, as well as to examine any further testimony or documents which might be presented, and he has made his report, by which he has found that there had been actually paid by James C. Flynn towards the purchase money of the said lands the sum of $2,810.17, and that he had received as a credit the proceeds of the sale of a portion of the said property amounting to $820, leaving a balance of money actually advanced of $1,990.17. The complainant has excepted to the said master's report, and to the various items of which it is composed, with, I think, the exception of one item. The allowance by the master of the different amounts, with the exception of the last, is based upon receipts of John L. McKnight, and entries of cash received in an account book of his, produced by his executor, verified by the testimony of James C. Flynn, that he had paid to Mr. McKnight all of the money which was paid for the purchase of the property. The exception to these items is based on the ground that there was another James Flynn, who about the same time had real-estate dealings with the said John L. McKnight; that this party had no middle name, and that the receipts, as well as the entries in the book, purport to be of the receipt of money from James Flynn, not James C. Flynn. This James Flynn had married a sister of James C. Flynn, and had had transactions with John L. McKnight for lands in Bordentown. I do not attach much Importance to the fact that the receipts or the account in the book are in the name of James Flynn and not James C. Flynn. James C. Flynn was undoubtedly a party to the purchase of the lands in question, for he signed the original agreement of May 14, 1800, but signed it as James Flynn, and it is not singular, therefore, that Mr. McKnight should so designate him with reference to payments on account of that contract. This agreement contains a receipt for $120 paid on account of the contract, and it is proved that the account in the book relates to this purchase by an entry in Mr. McKnight's handwriting on the opposite page to the account and adjoining it, as follow: "$120 is entered on the contract of James Flynn." Besides this, the receipts are in the possession of and produced by the claimant, James C. Flynn, and some of them are dated after the death of James Flynn, in 1863. These payments were evidently made on an open account of a purchase of land. While it is true, as stated, there had been transactions in real estate in Bordentown between Mr. McKnight and James Flynn, it is extremely improbable that they were the subject of small payments in 1860, 1861, and 1863. The first deed was in 1854, and there is no evidence to rebut the inference that the transaction between them was closed at that time. So far as appears, there was no mortgage or bond given to secure any part of the purchase money. It is true, the deed was not recorded until October 14, 1863, which was after the death of James, but it is coincident with the record of a conveyance by his widow to James C. Flynn of her dower right in all her husband's lands, indicating that the deed came into her possession on the death of her husband. As to the other transaction, there was a mortgage given back for part of the consideration money, and certainly there can be no presumption that any part of that was not paid or secured. On the other hand,
the evidence is that the property in question was to be paid for at the convenience of the purchasers. While the first deed for the land to Mary Plynn is dated July 1, 1861, there is no evidence when it was actually delivered. Of course, in the absence of all evidence to the contrary, the presumption would be that it was delivered at or about the day of its date and acknowledgment; but we have the fact that another deed, in all respects similar, was executed under date of February 9, 1865, the day after a settlement was had, according to an entry In Mr. McKnight's books; and this deed was recorded February 16, 1865, whereas the first deed was not recorded until June 18, 1868, a month after a second adjustment and settlement between Mr. McKnight and James C. Flynn. The giving of the second deed rebuts the presumption that the first was delivered. I think the fair inference from the facts is that the first deed was not delivered at the time of its date, and is not, therefore, evidence that the consideration money was then paid, but that, although executed, it was retained by Mr. McKnight as a muniment of his vendor's lien, and that he received the moneys on account of the purchase, gave receipts and credits in his book, until the settlement in 1865, when, the deed having been mislaid, or not found, the second one was made and delivered; that before or at the time of the second settlement, the first deed had been discovered, and was then delivered. This theory seems to harmonize with all known facts. I think all the items referred to, being all but the last, were properly credited, and that the exceptions thereto should be overruled.
Next, as to the credit allowed by the master of $2,000, the amount of a bond and mortgage made by James Flynn to James G. Flynn, and assigned by him to John L. McKnight it may be well, in the attempt to get at the true history of these matters, to state in chronological order the transactions between the parties.
| 1854, April 18. | Deed from John L. McKnight to James Flynn for property on Park street; consideration, §3,000; recorded October 14, 1863. It does not appear that, any mortgage was given in this transaction. |
| 1860, January 8. | Deed from John L. McKnight to James Flynn for property on Park street; consideration, 84,250; not recorded. |
| 1860, January 8. | Mortgage, James Flynn and wife to Mr. McKnight, on same property, for $3,250, recorded January 13, 1860. |
| 1860, January 8. | Mortgage, James Flynn and wife to James C. Flynn, on both properties, for $2,000, recorded January 21. 1860. |
| 1860, May 14. | Agreement between McKnight and Mary Flynn for property in question on Third street; consideration, $3,200. |
| 1861, July 1. | Deed, McKnight and wife to Mary Flynn, recorded June 18, 1868. |
| 1863. Oct. 8. | James Flynn died. Conveyance by Wynie Flynn, widow of James, of her dower right in all his lands, to James C. Flynn. |
| 1863. Oct. 6 | Agreement by James C. Flynn to collect all rents and pay one-third to Wynie Flynn during her life. |
| 1863. Oct. 14. | The deed from McKnight to James Flynn of April 18, 1854, and the conveyance of dower right of Wynie Flynn to James C. Flynn, were recorded. |
| 1866, February 8. | This entry in McKnight's book, page38, under name of James C. Flynn, "settled so as to leave a balance due of $2,000 from Jan. 1, 1805." |
| "1866, February 9. | James C. Flynn assigned to McKnight bond and mortgage of James Flynn and wife for $2,000. |
|---|---|
| 1866, February 9 | Second deed from McKnight and wife to Mary Flynn for property on Third street, recorded February 18, 1865. |
| 1866, February 9 | $200 indorsed on the bond of the $3,250 mortgage; and between this date and March 15, 1866, $1,750 was paid and indorsed on the bond, which appears to have been in full. |
| 1867, Jany. 81. | $350 indorsed by McKnight on the bond of the $3,000 mortgage as paid by Mrs. Flynn, with the further indorsement by him that it leaves due $1,688.28, with interest from the 1st of the month. |
| 1868, May 18. | McKnight assigned to James C. Flynn for the expressed consideration of $4,228.32—First, the $2,000 bond and mortgage, James Flynn to James U. Flynn; second, the $3,250 bond and mortgage, James Flynn to John L. McKnight. |
| 1868, May 18. | James C. Flynn gave McKnight his note at 4 mos. for $653.32. |
| 1868, June 18. | First deed, McKnight to Mary Flynn, recorded. |
The allowance by the master of this $2,000 must have been on the assumption that the assignment of the bond and mortgage of that amount was a payment pro tanto on account of the purchase of the land in question. I think this would have been a fair inference from the facts, if they stood alone,—First, of the settlement, with balance due of $2,000, as entered in Mr. McKnight's book under date of February 8, 1805; second, the assignment, February 9, 1865, of the bond and mortgage of $2,000; and, third, the deed from McKnight and wife to Mary Flynn, dated February 9, 1865, which was recorded February 18, 1865, Indicating its previous delivery. But this bond and mortgage were reassigned by McKnight to James C. Flynn May 13, 1868, he having received on it, according to indorsements, only $350. At the same time, and by the same instrument, he assigned the $3,250 bond and mortgage, and recites that it is in consideration of $4,228.32 paid by James C. Flynn. The latter does not pretend that he paid that amount, or the $1,650 balance due on the other bond at the time it was reassigned by McKnight. So faras we know, the transaction was that McKnight assigned these two bonds and mortgages to James C. Flynn, and he gave McKnight a note at four months for $653.32. The $2,000 bond and mortgage, when it came back to James C. Flynn, was worth on the face $1,650, and interest from January 1, 1867, and $38.28 prior interest, and to that amount he could have enforced his security. As it does not appear that he had parted with anything but the $350 paid McKnight on the bond, I do not see how he can be credited with this whole amount. Counsel for the other heirs claim that the transfer of the $2,000 bond and mortgage to Mr. McKnight did not refer to this property, but that, as James C. Flynn had assumed the payment of the $3,250 mortgage to protect his sister, Wynie Flynn, the widow, the $2,000 bond and mortgage was assigned as collateral security for such assumption. The evidence of James C. Flynn clearly shows he undertook to take care of the $3,250 mortgage after his brother-in-law's death. He says Mr. McKnight was going to foreclose that mortgage, "so I went to work to save myself and save her,—not to be turned out. Mr. McKnight just took it. for me to pay that, and then, when it was paid, be turned that mortgage." Other parts of his testimony are to the same effect, and show that he did pay moneys to Mr. McKnight on account of that bond and mortgage. I think the fair weight of the evidence is that the assignment of the $2,000 bond and mortgage was not as payment of a balance due, but as collateral security for James C. Flynn's indebtedness or obligations to McKnight. That it was connected with this property is, I think, clearly shown by the fact that the deed for the property was given at the same time the bond and mortgage were assigned. Counsel insists that it was only as security for the $3,250 mortgage, the payment of which James C. Flynn had assumed; and that it and the note subsequently given have no reference to the property in question. He fortifies his position with a certainly remarkable coincidence of figures, as follows, deducting the payments made on the $3,250 bond after February 9, 1865, the date of the settlement, amounting to $1,750 from $2,000, and interest from January 1, 1805, to May 13, 1868, the date of the note, and the balance will be within a few cents of the amount of the note. But coincidence of figures may be very misleading if the calculation does not embrace all the factors of the transaction. We have here the $2,000 due McKnight from Flynn January 1, 1805. Interest should be added to that, of course. The allowance of $1,750 must be on the assumption that Flynn had paid it, or was to be credited with that amount; but he was also entitled to be credited on the $2,000 indebtedness with the $350 paid on the other mortgage, and this calculation disregards that altogether. Besides this, the $1,750 paid the $3,250 mortgage in full, so that the $356 and the note must have been on some other account,—and none other appears, but the purchase of the land in question. It will aid us, of course, if we can get at the true particulars of the settlement of May 13, 1868. The consideration named in the assignment from McKnight to Flynn is $4,228.32. The note given by Flynn to McKnight is $653.32. The odd cents being the same, would indicate that the amount of the note is included in the consideration of the assignment. Deducting the one from the other, we have left $3,575 of the consideration to be accounted for. The $350 paid on the $2,000 bond left $1,650 principal due. This, with interest from January 1, 1865, and $38.28 prior interest due, added to the $1,750 paid on the other bond after February 9, 1865, makes $3,575, within a few cents, (a discrepancy easily accounted for by different calculations of interest), and this would represent that $1,750 of the payments on the $3,250 bond and mortgage had been made by James C. Flynn, and therefore they should be assigned to him: that $1,650 and Interest was the value of the other bond and mortgage which was reassigned; and the note, that Flynn still owed its amount to McKnight. It seems singular that Mr. McKnight should give up mortgage security for a debt for an unsecured promissory note, but the fact is he did so. This note, dated May 13, 1868, certainly had no connection with the $3,250 bond and mortgage, for Mr. McKnight received all he was entitled to on those securities on March 17, 1866. The $350 paid on the other bond had no connection with the $3,250 bond, for it was paid January 21, 1867, after the other was satisfied, so far as McKnight was concerned. This also proves that the $2,000 was assigned for other purposes than as collateral security for James C. Flynn's assumption of the $3,250 mortgage. The only other account on which these payments could have been made was the purchase of the land in question, and I think James C. Flynn is entitled to be credited on account of this purchase with $350 as of January 21, 1807, and with the amount of the note, $653.32. The exception to this item is allowed, and the amount will be corrected in accordance herewith.