Opinion
11-27-1899
FAIRCHILD v. FAIRCHILD et al.
John J. Crandall, for complainant. Samuel H. Richards and Thomas E. French, for defendants.
(Syllabus by the Court.)
Bill by Ellen M. Faircbild against Lucien Fairchild and others to set aside deeds executed by complainant's husband and herself under duress. Bill dismissed.
The complainant in this case is the widow of Jesse D. Fairchild, who died on December 21, 1897. She and Mr. Fairchild were married October 12, 1868, and she resided with her husband up to September 14, 1895. No children appear to have been born of the marriage. Fairchild died intestate, and the defendants in this suit are his heirs at law. The ground of complaint made by the bill is based upon the following circumstances: The complainant was the owner of a tract of land lying at Hammonton, N. J. In 1893 this land was divided into two parcels. On one of them a new house had been built, and on the other an old house had been, to some extent, restored and repaired. The portion upon which the new house was located was conveyed by the complainant and Fairchild, her husband, to Lyford Beverage, by deed dated May 12, 1893, for the named consideration of $200. This deed was witnessed by one John Atkinson, and was acknowledged in due form of law, on the 13th day of May, 1893, by Fairchild, and also by his wife, the complainant, before the said Atkinson, as commissioner of deeds for the state of New Jersey. The acknowledgment declares that the wife, Ellen M. Fairchild, "being of full age, on a private examination apart from her said husband, before me, acknowledged that she signed, sealed, and delivered the same as her voluntary act and deed, without any fear, threats, or compulsion of her said husband." In executing this deed the signature of the wife appears first above the signature of the husband. The deed was on the 15th day of May, 1893, recorded in the Atlantic county clerk's office. On the same day the grantee, Lyford Beverage, with his wife, re-conveyed the property (being the lot containing the new house) to Jesse D. Fairchild, the husband of the complainant, by deed dated May 12, 1893, for the named consideration of $200, with covenant of general warranty This deed was also acknowledged May 13 1893, by Lyford Beverage and his wife, before Atkinson, as commissioner of deeds; and both deeds were subsequently, on the 15th day of May, 1893, recorded in the Atlantic county clerk's office. The complainant, Ellen M. Fairchild, alleges that she had loaned $800 to her husband in his lifetime, and that she and her husband agreed that the complainant should be repaid the amount loaned to him by her, by the erection by him of a house on the lot. The house was built, and the wife claims to have furnished part of the money, and that the husband provided the residue. The complainant states that in February, 1893, she was in very feeble health, and that she discovered evidence of unfaithfulness on the part of her husband, and that he began to be cruel to her, so that she became a confirmed invalid, and her life was despaired of, and that while in this condition, and confined to her bed with sickness, and unable to resist his demand, he, on the 12th day of May, 1893, caused the conveyance toBeverage, above named, to be prepared, on an understanding that Beverage should immediately reconvey it back to the husband, Fairchild. She alleges that her husband "brought said conveyance, with one John Atkinson, a commissioner of deeds, with him, and demanded that oratrix should sign the same forthwith; that oratrix remonstrated with him that she could not do it," stating at length the reasons; that her husband then began a series of threats, and, being too feeble to have any controversy, she signed the deed, with the express understanding that upon her recovery it should be deeded back to her whenever she requested it. She admits that she indicated to the officer who took her acknowledgment her free execution of the deed, supposing she would have an opportunity to speak to him in the absence of her husband; but she alleges that this was not afforded her, and she had no chance to see the officer separately, out of the presence of her husband; that Beverage immediately conveyed the title to the husband, who departed this life, intestate, on December 21, 1897; and that upon his death the premises descended to his heirs at law, the defendants. The complainant alleges that the defendants hold title to the house "fraudulently and by duress"; that no consideration ever passed therefor from Beverage to her, or from Beverage to her husband. She alleges that on her recovery she demanded that her husband join in a deed reconveying the premises, but that he refused to do so, and in September, 1895, abandoned her, and in December, 1897, died intestate. She prays a decree that the defendants hold the property in question in trust for her, and that they have no interest in law or in equity in the same. Each of the defendants answers separately, denying the loan by the complainant to her husband, and alleging that the latter was engaged in business, the profits of which were largely spent upon the complainant. They deny any agreement to erect a house on the premises in question, in satisfaction of any loan to the complainant, and allege that the conveyances referred to were made pursuant to an agreement and arrangement between the complainant and her husband. They deny that in February, 1893, the health of the complainant was bad; deny that she discovered any misconduct on the part of her husband, and that there was any such misconduct; allege his devotion to and care for his wife; and deny the use of any threats to obtain the execution of the deeds in question, and state that the complainant executed the deed to Beverage of her own free will, and so acknowledged it before the commissioner. They deny any fraud or duress in obtaining the deed, and allege that the conveyance was made upon an agreement between the complainant and her husband that he should make some improvements on another lot belonging to her, which he did; that he made no promise to reconvey; that he was forced to leave the complainant because of her vexatious and false charges of infidelity; that the lands descended to the defendants upon the death of the husband intestate.
John J. Crandall, for complainant.
Samuel H. Richards and Thomas E. French, for defendants.
GREY, V. C. (after stating the facts.) At the hearing the vice chancellor called the attention of the counsel for the complainant to the fact that Beverage, grantor in one of the deeds which it is desired to declare void, was not a party in the cause. The counsel insisted upon his right to present the cause without bringing in Mr. Beverage as a party. No efficient decree can be pronounced, declaring the deed made by Beverage and wife to be void, unless those grantors be parties to the cause, in order that they may be bound by the decree. De Groot v. Wright, 7 N. J. Eq. 516, was a bill to reform a deed, and the grantor was not made a party. An injunction was dissolved by Chancellor Halsted on the formal answer of the grantee, disclaiming knowledge; and on final hearing (9 N. J. Eq. 58) Chancellor Williamson declared that no decree could be made unless the grantor in the impugned deed were a party before the court. Where A. desired to transfer the fee of his lands to his wife, and for that purpose conveyed to B., who, with his wife, reconveyed to the wife of A., and in both deeds there was a misdescription of the lands, it was sought by bill in equity to correct this. It was held that B. and his wife were necessary parties. Vanderbeck v. Perry, 28 N. J. Eq. 368-370. If the grantors are necessary parties where only the reformation of the deed is asked, they certainly must be where it is sought to have it decreed to be void.
Irrespective of the absence of the necessary parties to this suit, there are other fatal objections to the relief sought, which, to save further litigation, may properly be considered.
Whatever equity the complainant has to a decree declaring the deed which she executed to Beverage, and that which Beverage made back to her husband, to have been fraudulent, and obtained through duress, is dependent upon the events which happened at and before the execution of those deeds. In form, the conveyances are perfect, and effectual to pass the title of the complainant—First, to Mr. Beverage; and, secondly, to the husband, Jesse D. Fairchild. The complainant alleges that the deed to Beverage was obtained by actual threats made by her husband, as I understand the allegation in the bill, prior to and at the time when the commissioner was brought to the house for the execution and acknowledgment of the deed. She states' that she remonstrated and argued and resisted, and that, overcome by her husband's persistence and threats, she finally executed the deed, upon the understanding that the propertyshould be reconveyed to her when she recovered. The persons present at the doing of the events in question were Fairchild, his wife (now complainant), and the commissioner, Atkinson. Of these, Fairchild and Atkinson are both dead. The only living witness who participated in the transactions which resulted in the execution of the deed to Beverage is the complainant herself. The complainant was offered as a witness in her own behalf, and, against the objection of the defendants, gave the only testimony in the cause touching her transactions with her husband in the making of the alleged forced deed, and his statements regarding that matter. It is insisted that the complainant has filed her bill in this cause for the purpose of setting aside a deed made by her for her husband's benefit, in his lifetime, under duress exercised by him on her will. She brings this suit against his heirs at law, and calls upon them to answer touching his wrongdoing. They are sued as his representatives, and can defend only upon the same grounds that he would have defended were he alive. Whatever may have been the difficulties in reconciling some of the earlier decisions under the evidence acts, the cases of Joss v. Mohn, 55 N. J. Law, 407, 26 Atl. 987, in the supreme court, and Greenwood v. Henry, 52 N. J. Eq. 450, 28 Atl. 1053, and Kempton v. Bartine, 57 N. J. Eq. —, 44 Atl. 461, in this court, appear to have settled beyond question that in such a suit as this, brought by a widow against the heirs at law to set aside a deed to the ancestor, the heirs are sued in a representative capacity, and the complainant cannot testify unless the representative party were first called, and testified in his own behalf as to some transaction with or statement by the decedent. The testimony of the complainant being thus excluded, there remains no proof to sustain the equity asserted by bill of complaint.
If, however, the testimony of the complainant were admitted, I am of opinion that the weight of the evidence is against her allegation that the deed to Beverage was obtained to be made by threats and duress. The deed is in itself a perfect conveyance. The acknowledgment of the complainant as grantor is full and complete, in accordance with the statutory requirements. Such a deed is not to be lightly thrown aside. The safety of titles requires that the proofs shall be of the most convincing kind. Midmer v. Midmer, 26 N. J. Eq. 304, affirmed on appeal in 27 N. J. Eq. 548. The complainant's allegation in the bill is that before the execution of the deed her husband began a course of intolerable cruelty, so that the complainant became a confirmed invalid, and her life was despaired of by her friends; that while she was thus confined to her bed her husband brought the deed, and demanded that she execute it. She alleges that she refused, and said to him, as reasons for her refusal, that the income was all the support she had; that her husband did not support her; that he had squandered her property, with no prospect of returning it. In her testimony, however, she states no such condition of facts. Not a detailed charge of cruelty is made against her husband, except the threat hereinafter quoted. She says he often struck her, but no incident of time, place, or circumstance is given; and others, who should have known, say the husband was devoted in his attentions. She makes no claim that the income from the property was all she had, and no accusation of nonsupport or squandering of her property by him prior to the making of the deed. Nor does she testify that she made to her husband any such statements of facts as her reasons for refusing to sign the deed. She testifies that she was so ill as to be confined to her bed in February, 1893 (the deed was made on May 12, 1893), and that she "never got from her bed until the following June"; that her husband would not allow any of her relatives and friends to see her, save the doctor, and once that Mr. Beverage was brought in when she was in a very critical state. She declares in one part of her testimony that she had but two conversations with her husband about signing the deed before she signed it,—once before she was sick, when she declined "because her family would feel bad about it"; and once, after she was sick, he asked her again to sign the deed, when she replied that she "did not know how," and he said: "I will teach you how. You can't get out of this bed, and I have the front-door key in my pocket. I will leave you to die alone." This she says was about six weeks before she signed the deed. She testifies that she signed the deed while so sick in bed that she bad to be supported by her husband, and that Mr. Atkinson, the commissioner, took her acknowledgment in the presence of her husband, and gave her no chance to declare that she was compelled to sign it, as she intended to do if she had the opportunity. She further testifies that she had no talk with Mr. Beverage about the matter at all. The complainant, who is a very intelligent woman, knew when she was testifying as to the acts and sayings of her husband and of Mr. Atkinson, the commissioner, who took her acknowledgment, that, both of them being dead, no one could by any possibility in any way contradict her. The credibility of her testimony as to these incidents may fairly be judged by its truth when it relates to circumstances as to which other and disinterested witnesses testify. She states that she was not out of bed from February until May, and that she did not talk with Mr. Beverage about the matter at all. Mr. Beverage, however, swears that he kept a store in the same building in. which the complainant and her husband lived,—so near to them that the voices of persons speaking in their apartments could be heard in the store, when speaking loudly; that about May 10th Mr. Fairchild came into the store, followed by his wife, and Fairchild said that hiswife wanted to transfer a piece of property to him, and asked Beverage if he was willing it should go through his (Beverage's) hands. Beverage hesitated, and the complainant then spoke up and said: "You know, Mr. Beverage, the law will not permit a wife to transfer property direct,—it has to go through the hands of a third party; and we would rather it would be you, than any one we know of." Beverage further states that the complainant's health was such that, when she came into the store with her husband, she was able to move about. This testimony of Mr. Beverage is entirely inconsistent with that of the complainant. Instead of a weak woman, sick in bed from cruelty, who never talked of the matter with Mr. Beverage, she appears on her feet, as an uninvited volunteer, explaining to Mr. Beverage her reasons for asking his aid in making the conveyance which she now says was forced from her. If there was any compulsion, she had Mr. Beverage in his store, within the sound of her voice, to whom during the two or three days following this conversation, and prior to the execution of the deed, she might surely at some time have disclosed the truth. There is not the slightest reason to believe that he would in such case have aided, in the making of a compulsory deed, nor is there any doubt that she knew he would have refused the deed had she told him it was to be obtained by threats. Again, the testimony of the complainant is that the commissioner took her acknowledgment, but not separately, apart from her husband; that she expected and intended, if afforded the opportunity, to "acknowledge to the officer that I was being compelled, and would he bring me assistance in my hour of trouble." This statement is in direct contradiction of the express terms of the certificate of acknowledgment of the commissioner. That certificate, being in lawful form, is prima facie evidence of the fact of a separate acknowledgment by the complainant, apart from her husband. The testimony of the complainant alone should be weighed with great care, when presented in contradiction of the certificate of a sworn officer, entirely disinterested in the matter, that he had duly performed his duty. It should be noted that in this case neither in the obtaining of the deed nor in the taking of the acknowledgment does the complainant claim to have been deceived at the time of her action. She declares that she knew the deed was forced from her by threats. She knew she should have been separately examined, and had intended to complain to the commissioner if she were afforded the opportunity. She says she was in a resisting frame of mind, hoping for a chance to escape from the duress imposed upon her. The transaction took place in May, 1893. She admits that she was able to be about in the following June and thereafter. The natural action of an intelligent woman, who had been so recently subjected to such an outrage, and especially when committed by a husband who, she says, was unfaithful to her, would have been to make complaint, at least to those nearest, and who participated in the wrongdoing. She says she did not know for several weeks after she made the deed to Beverage about his having conveyed to her husband. If this be true, she had for several weeks in the same building with her the man who, so far as she knew, could, by a reconveyance, have fully protected her from the consequences of the wrong done, if any were done, if she but mentioned a word of it. She says she was poor, and not able to help herself; but, knowing that Beverage was in the next room almost constantly, it is difficult to believe she would not, during her convalescence, have spoken to him of the compulsory deed, if compulsion had been used to induce her to make it. But she is not shown to have spoken a word to Beverage or to any one else, save to her husband, now dead, either during the several weeks immediately after the making of the deed, or at any time until after her final quarrel with her husband. A comparison of dates will shed light on the nonaction of the complainant, and throw doubt upon her claim that the deed was forced from her. She made the deed May 12, 1893. She parted from her husband in September, 1895. She filed her bill in April, 1897. The period of acquiescence, from May, 1893, to April, 1897, is so long as to make it difficult to believe the cause of complaint existed. It appears in proof that the complainant was a woman who "had a mind of her own." "She was very careful to know the contents of the instrument she was asked to sign, and would state her objections, and seem to have a very good idea of business." Sometimes it took but a few minutes to have her execute a deed; sometimes, an hour. If such a woman were in fact forced to make a deed, it is hardly probable she would wait so long to claim relief. Speaking of a period after she had made the deed, she testifies that her husband told her she need not feel bad about it; that as soon as he had gained his point, and got the office (for which he had told her he needed to hold real estate), he would give the land back to her. But she also swears that he got the office, and that he did not deed it back; telling her that he had it in his possession, and possession was nine points of the law. This must have been before they parted, in September, 1895. She thus had, according to her own statement, full warning that he proposed to keep the property. She took no action for over a year and a half.
There is some evidence touching the dealings between the complainant and her husband during the period of their married life, from 1868 to 1895, which suggests an inference that the husband had given to the wife a valuable consideration for the transfer of the title to him alleged to have been obtained by threats. The testimony on the point is, however, somewhat confused; and, in view of the failure of the complainant's proofs to establishduress, it need not be further considered. On the whole case, the complainant has shown no equity, and the bill should be dismissed, with costs.