Opinion
12-27-1904
EVANS et al. v. EVANS et al.
Schuyler C. Woodhull and Thenford Woodhull, for complainants. T. B. Booraem and George S. Silzer, for defendants.
Bill by Antonio W. W. Evans and others against Richard W. Evans and others to set aside an alleged fraudulent conveyance. On bill, answer, etc. Bill dismissed.
Schuyler C. Woodhull and Thenford Woodhull, for complainants.
T. B. Booraem and George S. Silzer, for defendants.
BERGEN, V. C. The bill of complaint alleges that Elizabeth M. Evans and Isabella J. Evans, being the owners of certain real estate in the county of Middlesex in this state, conveyed the same to Richard W. Evans; that they on the date of conveyance were 80 and 81 years of age, respectively, and also that they were infirm and unable to transact business understandingly; that the defendant and his wife, fraudulently, and by falsely representing to these two aged women that the proposed deeds were approved of by the brothers and sisters of the defendant Richard, and by promising to provide for each of them a home, and to care for them during life, and that thereafter he would hold the land in trust, as to four-fifths of it, for his brothers and sisters, induced Elizabeth and Isabella to convey to him in fee simple the lands described in the bill of complaint The prayer of the bill, among other things, required the defendant to set forth the consideration paid or agreed to be paid for such conveyance. The answer filed by the defendants is responsive to all of the charges set forth in the bill of complaint, and denies with great particularity all the charges of fraudulent conduct and false representations set forth therein, and, as to the consideration, shows that the two old women could not well manage the farm; that he was applied to by them to take the farm, and agree to maintain for them a home as long as they lived, the land at that time being subject to a mortgage, upon which large arrears of interest was due, as well as unpaid taxes to a considerable amount; that he applied to his brothers and sisters, asking them to accept the proposition; that they declined to do so, whereupon the defendant gave up his business in New Brunswick, took the deed for the farm, moved on it, paid off the incumbrances out of his own money, expended a thousand dollars in repairs on the property, and furnished a home for the grantors during their respective lives, providing the necessary care and attention required.
The complainants, by requiring an answer under oath, have made this answer evidence, so far as it is responsive to the charges contained in the bill of complaint and to the interrogatories propounded. Youle v. Richards, 1 N. J. Eq. 539, 23 Am. Dec. 722; Merritt v. Brown, 19 N. J. Eq. 286. It is the well-settled rule that the direct and positive answer of a defendant to the charges of the complainant must prevail, unless overcome by two witnesses, or by one witness sufficiently corroborated to amount thereto. A careful consideration of the evidence produced by the complainants in this cause convinces me that it does not meet the requirement of the rule. There was some evidence showing that these people were deaf, but, on the other hand, they seem to have been able to transact ordinary business, collecting dividends, indorsing checks, and handling money. It also appears that, on the day the deed was executed by Isabella, one of these complainants was in the house, and saw the parties in the parlor withthe aunt, and apparently knew that a deed was to be made, yet she entered no protest, nor did either of the complainants make any effective complaint during the lifetime of the grantors, and while the defendant was performing the service in consideration of which the conveyances were made.
I am satisfied that the complainants have not maintained the charges and allegations in the bill of complaint upon which they base their claim to a decree, and must therefore advise a dismissal of the bill of complaint.