Opinion
02-23-1888
SILVERTHORN v. TROXALL.
J. M. Roseberry and Henry S. Harris, for complainant. L. De Witt Taylor, for defendant.
Bill in equity to set aside a release of dower, by Elizabeth Silverthorn against Lorenzo Troxall.
J. M. Roseberry and Henry S. Harris, for complainant. L. De Witt Taylor, for defendant.
BIRD, V. C. This bill is filed by Mrs. Silverthorn for the purpose of having declared void a release of dower executed and delivered by her. Her husband, William Silverthorn, executed a bond, which was afterwards delivered to her, for $3,564, and also a bond for $1,500, which was afterwards delivered by assignment to the defendant and one Brands. These bonds were both secured by a mortgage upon the real estate of William Silverthorn; of course, Mrs. Silverthorn not joining in the execution of the mortgage. As intimated, the $1,500 bond was assigned to Troxall and to Brands for purposes which need not be disclosed further than to say it was to pay his debts, together with such interest in the mortgage as secured the same. On the 15th of February, 1887, Troxall and Brands filed a bill to foreclose the mortgage, and to secure a sale of the property. Mr. L. De Witt Taylor was their solicitor. As such solicitor, he issued a subpoena, and carried it with him from Belvidere, where Mr. William Silverthorn was living, to Newark, where Mrs. Silverthorn was then living with her daughter, and carrying on the business of keeping boarders. He presented the subpoena to Mrs. Silverthorn, and told her that a bill had been filed to foreclose the mortgage which secured these bonds, and spoke to her about the property and its value, and her interest in it, and asked her to acknowledge the service of the process which he then had; telling her that by so doing the expense of service by the sheriff would be avoided. She signed an acknowledgment of the service. He also asked her to release her right of dower in the premises so mortgaged, telling her that it was desirable to secure the sale of the premises free of her right of dower, or, in other words, that it was desirable to pass a good title. He said to her that it would be to her interest, as well as to the interest of all concerned, to do so; that, under the circumstances of the case, she would make two dollars out of the advance secured thereby, while the holders of the $1,500 bond would make one dollar in case of such release. He then had a release prepared for her to execute. Mr. Taylor says, under oath, that he read it to her very carefully. Mrs. Silverthorn says that he read two papers, but afterwards she qualifies this statement by expressing doubts and ignorance of what he actually did. That the paper was signed by her, and that she acknowledged it according to the forms of law, is apparent from an inspection of the paper itself, which is in evidence. Mr. Taylor said to her at the time of the execution of the paper, or soon after, that, if she would send the bond to him at Belvidere when it became necessary to have the report of the master in the case, he would present her bond to the master, and have it reported upon; and she afterwards did so, and the amount due thereon was reported accordingly. Several days after the execution of this release, Mrs. Silverthorn was in Belvidere, by request, it is said, of Mr. Taylor, but, if that be so, by the request also of her husband; but whether they were interested in having her there or not I do not think is material. It is sufficient to say that, when in Belvidere, she had a long interview with her husband and Mr. De Witt Taylor about the liabilities of her husband, and the payment of them. During that interview she called attention to this release, observing that she did not fully understand it; thereupon it was produced by Mr. Taylor, and read and explained to her, after which she made no further objections to it until the time of the filing of this bill. After this interview, at which Troxall waspresent, and before he knew of any dissatisfaction upon the part of Mrs. Silverthorn, he and Brands proceeded, under the arrangement which before had been made, to make payments upon account of property which had been transferred to them, and paid at least $580, but as they insist $800.
Now, the grounds upon which it is sought to have this release declared void are these: That Mr. Taylor acted without sufficient regard to the position he occupied towards Mrs. Silverthorn, and that his conduct towards her, as appears in the evidence, develops what is termed a "legal fraud;" and that she was at that time a married woman in infirm health, away from her husband, and in the absence of her daughter, who was then living with her, and at a period of the day when her duties in the discharge of her avocation were particularly pressing. It is claimed that she was thrown off her guard from the fact, known to her, that Mr. Taylor was the solicitor and counsel of her husband in a cause which was then pending in the court of appeals; and that Mr. Taylor, during the interview, expressed a hope that the decree, which was against Mr. Silverthorn in the court below, would be reversed; and that, more effectually to accomplish his purpose, he appeared in great haste, thereby depriving her of all opportunity for reflection or consideration or consultation. Counsel for complainant says, under these circumstances: "We are asked to believe that Mrs. Silverthorn deliberately conveyed away her right of dower in the valuable house and lot, which had so long been her home, without one cent of consideration or advantage." Is it true that this inquiry points to the exact situation? Is it true that Mrs. Silverthorn executed that conveyance without any consideration or advantage to herself? It is true that she got no cash or other valuable thing in hand, but with reference to the future, should she survive, it cannot be said with truth that the transfer was without any consideration; at least, so it seems at first view. It must be remembered that her husband at that time was living, and that he still is, and that, so far as could have been foreseen, he had as reasonable a prospect of long life as she; she then, as she declared under oath, being in very feeble health. What, then, was the nature of her interest which she released, and how valuable was it? It was an inchoate interest in dower in said lands, and truly hers absolutely during her life. If she survived her husband, the value of that interest would depend upon the entire value of the premises. If she did not survive him, she never would reap any benefits therefrom, unless she should reap them in her husband's life-time, and by some such transaction as the one in question. Had she not released, and the sale under the foreclosure had taken place, she would have had an interest of some value, which would increase in value in proportion as the probabilities should increase of her surviving her husband, and would diminish in a like ratio if the probabilities should be the other way. Now, dealing with the case as we have it, can it be said that it is at all likely to result in profit to her, so that upon principle there really was a valuable consideration to her in the execution of this release? I have no doubt that Mr. Taylor said to her that by the execution of this release she would be benefited two dollars, and the defendant Troxall and Brands one dollar, out of the increase of the consideration. I understand he meant by this to say that as her claim, which was $3,500 and over, exceeded the claim of Troxall and Brands, which was $1,500, so in that proportion would her receipts from the purchase money at the foreclosure sale be increased over their receipts from said sale. Now, how can this be? Plainly, if the value of her husband's interest in the property, subject to her right of dower, was sufficient to pay the amount due upon the mortgages, and all the costs of the foreclosure, there can be no application whatever of this method of reasoning; for then the mortgagees would realize every dollar that is due to them, and the holder or owner of the inchoate right of dower would continue to own that unimpaired. But if it should turn out that the property so mortgaged should not be worth the amount due upon the mortgage, independent of theright of dower of Mrs. Silverthorn, then most manifestly, at first blush, there is an opportunity for Mrs. Silverthorn to improve her present financial condition by executing such a release. For example, suppose that the property so mortgaged is only worth the amount due upon these incumbrances, when free and discharged of every other lien; then there can be but little doubt that Mrs. Silverthorn, upon such sale, would enjoy a very considerable profit by the release of her dower. The receipts of such a sale would be cash to her, while her inchoate right of dower would remain in expectancy, with as strong a doubt, under the circumstances, of her living as long as her husband. The evidence before me does not very satisfactorily disclose the true value of the premises. All that there is upon that subject comes, directly or indirectly, from Mrs. Silverthorn herself; she placing it at $2,500 or $3,000. If that be the true value, or approaching it in any just sense, then it is said that Mrs. Silverthorn has been very greatly benefited by the execution of the release. Being in feeble health, her prospect of longevity cannot be said to be good; and her interest in dower in the premises of no greater value than these would be at best comparatively small, should she survive her husband. But when it is considered that, under the circumstances, he has an equal opportunity of survivorship, it may well be said to have been the mark of wisdom for her to accept of all that she could get now, after giving to Troxall and Brands their just proportion of such interest in dower according to the amount of their mortgage. These views, I think, present the case on behalf of the defendant.
In all this there is nothing to make it apparent that the defendant, through his solicitor, Mr. Taylor, intended, by acts or direct speech, to wrong, or in any way to do injustice, to Mrs. Silverthorn. And this is the most favorable view that can be given to the case in behalf of the defendant, and this, I think, he is most justly entitled to; for, in one sense of the word, it may be regarded as an ordinary business transaction,—as one of common occurrence; for married women are very frequently called upon to surrender their inchoate rights of dower in the real estates of their husbands; and were it not in this particular case that the person executing the release was at the time away from her husband, and among strangers, and most manifestly but little accustomed to business, and perhaps almost never before engaged in any real-estate transactions involving the conveyance of title, or the perfecting of title to lands, the inquiry would rest here. But this view does not cover the whole case. All of the facts and circumstances which were material to the completion of such a transaction with a married woman were not presented to Mrs. Silverthorn. I am not at all prepared to say, from the testimony, that there was any effort at concealment, or that, in any sense, any material facts were intentionally withheld. It is enough, under the law, to know that they were not shown to her,—that they were not brought to her attention,—so that she could fully realize the extent of what she was called upon to do. It was not shown to her that all the money which was taken into the account (that is, the two dollars spoken of which she would receive, and the one dollar spoken of which Troxall and Brands would receive) was in reality all to spring from her title and her interest in the land which she was called upon to release. It was not shown to her that this title, such as it was, was hers absolutely; and that it remained hers, to all intents and purposes, so long as she lived, whether she survived her husband or not; and that she could dispose of it, whether for much or for little, entirely as her own. It was not shown to her that the two dollars which it was said she would get was already her own, and the one dollar which it was said the other parties would get was also already her own, and that that would be a gift absolutely to them, or to the creditors of her husband. In no sense was she given to understand that she was doing this without the slightest consideration, as clearly appears when the veil is removed. Now, as I understand the case, these things ought to have been shown to her. I think it was the duty of Mr. Taylor to make them known. It was herright to understand that the sale under the foreclosure would not destroy her inchoate right of dower in the lands, and that she would retain that same right after the sale. If a release was desirable for the benefit of all persons interested, it should have been explained to her that she could release at the sale for such consideration as she might demand, and that, if she did so release, such consideration would be hers absolutely. It cannot be supposed that Mrs. Silverthorn intended to give $100, or any other sum, to Troxall and Brands, or to her husband's creditors, since she had not joined in the mortgage, and was at the time of signing the release engaged in an arduous struggle for a comfortable living, independently of her husband. If she had been told that her inchoate right of dower was such an incumbrance as would cause the property to bring $800 to $600 less than its real value, and that after the sale she might realize some such sum for her interest in order to remove the incumbrance, I am not prepared to say that she then would, as a matter of course, have given this release. Considering the ways of man in such business matters, the inevitable inference is that she would not have so released. Now, as at first intimated, the subpoena to answer, and the form of her release, were presented to Mrs. Silverthorn at the same time; and in the course of a very few minutes she had signed the acknowledgment of service of the one, and had executed and acknowledged the other. It was simply read to her, with a statement to the effect that it would facilitate the sale and perfect the title of the lands which were being foreclosed, and that for every dollar that Troxall would receive by virtue of such release she would receive two dollars. Now, it will be seen that all the other material circumstances to which I have just adverted were absent from her mind. It must be acknowledged that she did not know, nor did she in any sense consider, nor was it at all present to her mind, the fact that she was in reality making a gift, without any consideration to herself, of a certain amount of money to Troxall, and, through him, to the creditors of her husband. I have above stated that the evidence seemed to establish the value of the property mortgaged at $2,500 to $3,000; and this, from the testimony of Mrs. Silverthorn. In addition to her testimony is the value fixed upon this property by the persons present at the meeting referred to in Mr. Taylor's office, when the deed of release was produced at the request of Mrs. Silverthorn. A paper was then prepared submitting the situation of affairs to Mrs. Silverthorn, in which the property is valued at $3,000. The amount due upon her mortgage was nearly $4,000, so that there was no possibility of her receiving the amount that was actually due to her upon this acknowledged claim, to which she had an indefeasible title independently of dower. While this was so, it was perfectly natural and business-like for her to take advantage of the situation, retain the benefit of the incumbrance which she held in her right of dower, and purchase the property, if she could get it at a reasonable and satisfactory price; her prospects of doing which would be further and further removed as the title could be perfected by the removal of the incumbrance which she held within her own hands. Now, it was not made known to her that, if she desired to buy the property, she would stand in a better position to do so by not releasing her right of dower. But she did make known the fact, confidentially, to Mr. Taylor, that she was considering whether or not to buy the property. This communication to him, together with other circumstances in the case, such as the fact that she knew Mr. Taylor was her husband's counsel in another important matter, to which Mr. Taylor then adverted, shows that she placed confidence in Mr. Taylor, and did not regard him as a stranger, with whom she would be obliged to deal at armslength. Therefore, to my mind, one material and important fact is ever present in the case; and that is that while there was an appearance of Mrs. Silverthorn's being benefited by the declaration to her that, if she would sign the release, she would get two dollars to every one dollar which Troxall should receive, there was in reality no consideration at all for the transaction movingto Mrs. Silverthorn, for she was being paid the two dollars out of her own treasury, and out of the same fund was making an unqualified gift to Troxall. I have only adverted to the fact that Mrs. Silverthorn spoke of buying the property for the purpose of showing her confidence, at the time, in Mr. Taylor; not for the purpose of giving any especial weight to the probabilities that she might buy, however much she might be enabled to turn the fact of her having an incumbrance to her own benefit in case the way to purchase presented itself. Counsel, in his brief, represents that, in case Mr. Silverthorn should die, Mrs. Silverthorn's interest in dower in these lands would be equal to about $486.48. Now, it is the one-third of that sum which she gives away absolutely by signing this release. True, it is said, and justly said, that she has it not now to give; but the fact nevertheless remains, and it can be with equal justice claimed, that the incumbrance exists, and that it was deemed an advantage to Troxall to remove it, and that whatever profit arises therefrom she has a right to the full benefit of.
But it is urged that by this arrangement Mrs. Silverthorn gets the two dollars, or two-thirds of the $486.48; and counsel quotes from the case of Perkins v. Elliott, 23 N. J. Eq. 526, where the chief justice says: "In the absence of fraud or imposition, this court cannot attempt to measure the adequacy of the interest which has induced her action. Whenever her property or her rights are involved, she has a competency to contract, and consequently must decide for herself as to the value of that which she will acquire by an outlay of her money, or as an equivalent for her engagements." But it must be remembered that here Mrs. Silverthorn receives no consideration whatever; whatever it is pretended she will get she already has, and whatever advantages may accrue to her and to Troxall in connection with her release belongs to her singly; and that at any time she can turn them to her own individual account, for whatever consideration she sees fit to accept therefor. In order to enforce this view, the counsel also calls attention to the case of Insurance Co. v. Marshall, 32 N. J. Eq. 111, in which the court says: "The impolicy of admitting such evidence to countervail the official certificate is obvious. If such testimony were admitted, the danger to titles depending on the deeds of married women would be great indeed; especially where the officer by whom the acknowledgment was taken had died, or, as in this case, had gone beyond reach, so that his testimony could not be obtained. The stability of such titles would manifestly often depend on the memory or integrity of those whose interest it would be to nullify them." I have already intimated sufficiently clearly, I think, that the difficulty in this case is not in the simple execution of the deed; not whether the instrument was read to the married woman, or whether she acknowledged it according to the forms required by law, but whether she had such understanding of the true nature of the transaction as she was entitled to have, in order that the execution of the instrument might be binding upon her according to its legal import and effect. Nor, in coming to these conclusions, is it necessary to depend upon the testimony of Mrs. Silverthorn alone; for if her testimony were out of the case, and she were here objecting to the interposition of this release, as she now is, Mr. Taylor's frank statements as to what took place would leave an immense, yea, a measureless, void in this transaction, without anything more than the frailest semblance of a consideration to bridge it over. I have yet to learn that equity will allow one person to acquire a profit at the hands of another, under such circumstances, without any consideration. It has not the semblance of inadequacy, simply, but is without any. In cases of gross inadequacy of consideration, fraud is always presumed; much more when there is none. It is a legal fraud. The manifold application of the principle which governs in such cases is shown by the following authorities: Cook v. Cole, 6 N. J. Eq. 522; Doughty v. Doughty, 7 N. J. Eq. 227, (though reversed in Id. 643, sustains the principle;) Hunt v. Hunt, 13 N. J. Eq. 161, 163; Weber v. Weitling, 18N. J. Eq. 441; Crane v. Conklin, 1 N. J. Eq. 346; Wintermute v. Snyder, 3 N. J. Eq. 489; Gifford v. Thorn, 9 N. J. Eq. 702; Cummins v. Little, 16 N. J. Eq. 48; Evans v. Llewellin, 1 Cox, Ch. Cas. 333, 2 Brown, Ch. 150; Cocking v. Pratt, 1 Ves. Sr. 400; Broderick v. Broderick, 1 P. Wms. 239; Osmond v. Fitzroy, 3 P. Wms. 129; Stilwell v. Wilkins, Jac. 280; Osgood v. Franklin, 2 Johns. Ch. 23; Portmore v. Taylor, 4 Sim. 182, 212; Underhill v. Horwood, 10 Ves. 208; Ware v. Horwood, 14 Ves. 28; Butler v. Miller, 15 Wkly. Rep. 779. I call especial attention to the case of Baker v. Monk, 4 De Gex, J. & S., 388, and also Clark v. Malpas, 4 De Gex, F. & J., 401; Kerr, Fraud & M. 143; Hallett v. Collins, 10 How. 174; Bigelow, Fraud, 279.
I have said that the defendant insists that he made payments on the strength of this release, which he would not have otherwise made. The amount of such payments is said to be over $800, but certainly $580. And this, resulting from the release, it is said, enables the defendant to stand on the doctrine of estoppel for his protection, and that, in any event, the complainant should reimburse him for these sums so paid. I am not convinced that the doctrine of estoppel can be invoked at all in this case; but, if it can, then certainly there was no such reliance upon the release as is claimed. For counsel admits that the complainant's interest in dower was not over $486, one-third of which ($162) only could be claimed by the defendant; which being so, one is not called upon to suppose that the defendant paid either $800 or $580 because of such release. Besides, whatever he may have paid, it is not made to appear that he has not other moneys of the husband, (W. S.,) whose assignee he is, out of which to reimburse himself. It is certain, indeed, that he is still the holder of the interest of W. S. in the mortgage first above mentioned.
I think the said release should be declared void and of no effect, and that Lorenzo Troxall should be required to execute a deed of quitclaim to all or any right, title, or interest in, said premises by virtue of such release. The complainant is entitled to costs.