Opinion
12-04-1888
COLEMAN'S EX'RS v. HOWELL et al.
G. W. Macpherson, for complainants. W. Holt Apgar, for defendant Forman. G. D. Scudder, for defendants A. C. Howell and Hendrickson. W. L. Lanning, for defendant W H. Howell.
On bill to foreclose.
G. W. Macpherson, for complainants. W. Holt Apgar, for defendant Forman. G. D. Scudder, for defendants A. C. Howell and Hendrickson. W. L. Lanning, for defendant W H. Howell.
BIRD, V. C. Bill to foreclose.
1. How much is due on the complainant's two mortgages? All of the principal. But there is a dispute as to the amount of interest. They claim that there is over $1,200 due. This they arrive at by taking the statement of the deceased mortgagee, as indorsed upon one of the bonds, as evidence of the amount due at a certain time. There is nothing in the case to make that statement binding on the obligor. There is no proof that it was made in his presence, or that he ever saw it, or had the slightest knowledge of it, untilafter the death of the mortgagee. A party cannot establish his claim by his own declaration, when not assented to by the party to be charged. This indorsement on the bond was made in 1883. The last indorsement of interest prior to that was in 1872. But between these dates there is some evidence that the devisee of the obligor (W. H. Howell being such devisee) paid the obligee considerable sums of money, at different times. There is some evidence that the mortgagee kept a book of accounts, and that in it were entries showing that he had received those sums of money from the said devisee. The book is not produced, nor is its absence accounted for, but notice was given to the complainant to produce it. However, a paper is produced which the devisee swears is a copy of the book, and which was produced by him at a meeting of himself and the executors, had for the purpose of ascertaining the amount due, with the object of raising a sum by another loan sufficiently large to discharge all of the existing obligations. On that occasion it was not objected that the copy produced was not a correct copy, nor was it objected that the alleged payments were not made on account of the bond. This copy, although produced by the devisee of the obligor, and not verified as a true copy by any other witness, is, under the circumstances, some evidence, though slight. But since it is not contradicted, and since the executors do not produce the book, nor account for its absence, and the witness being competent to speak on that point, and the testimony being relevant, I think I am obliged, by the rule, to regard it as sufficient. The sufficiency of it might be doubted, were there the slightest proof of any other dealings between the devisee and the mortgagee; but there is none. There is no proof to show that there were any other transactions between them, out of which the relation of debtor and creditor might have been created. Then comes the inquiry, why did the mortgagee make these voluntary written statements and admissions in his day-book, if they were not intended as an acknowledgment of the receipt of the money paid to him by the devisee, on account of these bonds and mortgages'? I think the amount of interest clue must be ascertained by giving credit for the amount of these payments, at such times as the sum of the payments equal or exceed the interest then due, making rests at such periods only.
2. The amount dun on the mortgages being thus ascertained, I will next consider whether the devised premises are still liable for the legacies which were charged upon them by the will of the owner of the equity of redemption. By such will this land was devised to his son William, and also all of the remainder of his personal estate, charging both the devisee and the estate devised with the payment of the legacy given to the daughter, and to the son, as will best be seen by the following items from the will: "I give to my son Alfred Clarke Howell the sum of one thousand dollars, to be paid to him by my executor when he arrives at the age of twenty-one years, and I hereby appoint my son William Henry Howell the guardian of the person and the property of the said Alfred Clarke Howell during his minority, and do direct that he be supported and properly maintained, and provided with suitable boarding, clothing, schooling, care, and attendance, and that he be properly instructed in some suitable occupation, business, or profession, such as my son William Henry Howell may deem fit for his advancement after attaining his majority. I do hereby give, devise, and bequeath to my son William Henry Howell all my estate, both real and personal, of every description, to him, his heirs and assigns, forever, charged with and subject to the payment of the legacies herein expressed, in behalf of my said wife, and my other children, hereby directing him faithfully to carry into effect the provisions so as aforesaid made in their behalf each." He then appointed his said son the executor of the will. William proved the will, and undertook the execution of its provisions. He elected to accept the devise, and went into possession of the land given to him. Of the legacy of $700 given to the daughter he has paid over$500. There is no pretense but that these legacies were valid liens when the devisee entered into possession; but he now claims that the one to his brother has been released, and, if not released, is barred by the statute of limitations, and that the one to his sister has been paid in full. On what facts and circumstances does the allegation that the legacy of the brother has been released rest? The brother Alfred arrived at age in April, 1875. In November, William prepared two deeds of conveyance, one conveying the mortgaged premises to his brother Alfred, and the other conveying them from Alfred to the wife of William. To all intents and purposes they were both executed at the same time. How could that transaction amount to a release? Alfred gave nothing, nor did he receive anything. He did not take the title for the purpose of holding it, but for the sole purpose of passing it to the wife of William. With such a purpose in view, in equity, he could not take anything by such a conveyance. Having accepted the title with such a purpose in view, equity would not permit him to hold it as a better security for his legacy, had he desired so to do. He would have been compelled to convey to the wife of William; for, in equity, the moment he received the title it passed to her.
But, again, it is urged that, in a few days after the transaction last named, the legatee accepted a chattel mortgage from William, and that it was understood that such mortgage was received in payment of the said legacy, or, at least, in discharge of the land from the lien of said legacy; and that he procured the said chattel mortgage to be renewed three years in succession; and that at the time of the filing of the first renewal, dated the 14th of December, 1878, he made an affidavit that there was due and owing upon said mortgage the sum of $1,064, and that said mortgage was given to secure a note which was given for the deponent's interest in said land. The affidavits to the other two mortgages so renewed and filed were similar in effect. In my judgment, when the true relation of these parties is understood, neither of these transactions between them will be regarded as having any weight whatsoever in support of the allegation that the legacy has been either released or paid. When William went into possession under the will of his father, his brother, the legatee, was only about six years old. They were then occupying the homestead. By the will, William was to provide for and educate his brother, giving him a home, and securing for him some useful employment or profession. He was made the guardian of the legatee, and at his arriving at the age of 21 he was to pay him a thousand dollars. After thus living with William, and being subject to his control for 15 years, he reached the period of his majority. Two years thereafter William takes him into his confidence, and uses him to place the title of the devised premises in the name of his wife; and, as stated, very shortly thereafter William has prepared the chattel mortgage and the affidavit required by the statute. Of this he informs his brother, and tells him where he will find the document, and to go and make the affidavit to it, which the legatee does. For the three successive years William has the legatee do the like. It is claimed that the legatee well understood what he was doing. Yes; and so he is charged with knowledge of the contents of the' papers which he thus executed, just as every other intelligent person is. But the question is not how much he knew, or how well he understood, what he was doing, but, rather, how he was influenced to do it. The answer to this must come from William, so recently the guardian of the legatee. The burden in every such case is upon the trustee. This rule is especially valuable in this case. It sometimes goes for a great deal with the judge to see and hear a party on the witness stand. Alfred, the legatee, was before me in the capacity of a witness, and it became perfectly clear to my mind that his elder brother, who had been exercising so much influence over him for so many years, could control him about such business matters at his own will. I therefore think that the effort to show that the said legacy has been released or satisfiedhas wholly failed. In the hope of accomplishing the same end, it is claimed that the wife of William never heard of the lien on the land, and that, therefore, she can hold that land as an innocent grantee. But the will was recorded, and that was enough; and, in addition to this, she paid nothing. Besides, it was by the will made a debt of the devisee, the moment that he accepted the devise; for he could not take the profit, and cast off the burden, without paying it. It being thus an obligation resting on him personally, the law requires him to be just, and to pay his debts, before he undertakes to be generous.
3. Has so much time elapsed that the statute of limitations is a bar? The obligation of the devisee is not within the statute, for he has given a sealed instrument (the chattel mortgage) for, and as security at least for, the amount due, which has yet several years to run. But is the claim of the lien upon the land lost by lapse of time? If, in any case, it would not be until the lapse of 20 years after the legatee arrived at the age of 21, which did not happen in this case until the year 1875. Nor is the fact to be lost sight of that in this case the devisee of the land was trustee and also guardian of the legatee. The reading of the clauses of the will above quoted brings before the mind the very highest conditions of trust and confidence. In such cases, it is very difficult to prevail upon a court of equity to consider a plea of the statute. See the case of Hedges v. Norris, 32 N. J. Eq. 192, and the many cases referred to in the reporter's note. The whole amount of the legacy is due, and is a lien on the land. Interest will be calculated thereon from the time the legatee arrived at the age of 21. Unless counsel can agree upon the several amounts due, there will be a reference.
The set-off presented to the claim of Mary cannot be considered. The alleged services were rendered in 1861, or very soon thereafter. No account was kept of them, nor was there any promise of payment; nor has there ever been any demand.