Opinion
06-30-1886
LARISON v. POLHEMUS.
W. H. Vredenburgh, for complainant. H. G. Clayton, for defendant.
On bill for injunction and to quiet title. Facts appear in opinion.
W. H. Vredenburgh, for complainant.
H. G. Clayton, for defendant.
BIRD, V. C. The complainant purchased the lands described in his bill at judicial sale, which sale was confirmed by an order of the court, directing the officer to execute a deed to the complainant. At the time the premises were being offered, the defendant exposed, in the presence of bidders, of whom the complainant was one, a mortgage, and declared that he held it as a lien upon the premises. To overcome that claim, and to quiet the title as to that mortgage, the complainant comes into this court.
I will briefly state the history of the mortgage, so far as the defendant is concerned. It was given by one Cooper, in 1856, for $6,500, on premises which were afterwards purchased by the defendant's father. In 1859, the owner of the mortgage assigned it to William Norton. In 1862, when the principal and interest were reduced to $2,270, the defendant says he paid that amount upon the bond, and took the bond and mortgage into his possession, and has had the possession of them ever since as his security. He took no written assignment, and makes proof of no assignment, other than the delivery. There was indorsed upon the bond, by the agent of the owner, these words:
"APRIL 11, 1862.
"Received two thousand two hundred and seventy dollars on the principal and interest in full to this date on this bond and mortgage.
[Signed] "ISAAC NORTON,
"FOR WILLIAM NORTON."
No claim, nor any pretense of claim, has been in any way proved, or attempted to be proved, on the part of the defendant against his father, who, at the time of the payment, was owner of the premises, and continued to be until the year 1879, nor against any one else since his death, until the period of this judicial sale in 1884.
After the most careful consideration I am unable to give the claim of the defendant that credit which is necessary to warrant me in dismissing the complainant's bill for want of equity. It is true, the mortgage wasnot canceled of record. It is true, the defendant holds it, and also the bond which it was given to secure. It is also true that he swears that he paid the $2,270, and took possession of the bond and mortgage for his protection. He says that that money was his own, admitting, however, that when he went to make the payment his father paid him a portion of it, but insisting that that money which his father so paid him he had previously lent to him.
At the time of this transaction the defendant was unmarried, and living at home with his father, and was at the age of about 35. There was no account or statement of any kind between the father and son with respect to this bond and mortgage, and the amount due thereon. The defendant accounts for the absence of any understanding between him and his father by saying that within the next three or four years his father purchased other lands, and agreed with him and his brother George that if they would work his two farms, and earn for him, the father, so much money that he could invest $12,000, he would then convey to them his said two farms; the one having the mortgage on, to the defendant. He says they accepted this offer, and worked and managed said farms until the year 1878, when they had actually earned for their father about the sum of $12,000. He says that in the spring of 1878 he gave up the farms to them,—the one with the mortgage upon, to the defendant; and that they remained in the possession of them until the next year, when their father died without his ever having executed to either of them any deed of conveyance. It appears that after the father's death a bill was filed for the partition of said lands among his children and heirs at law. The defendant and his brother answered said bill, and claimed that in equity they were entitled to the said lands, and that the other heirs at law had no interest in them. In his defense to that suit no part of his resistance was based upon this mortgage, by implication or otherwise. In speaking of the farm, in his testimony in that case, he said:
"There was a $3,500 mortgage on it. That was on it until we paid it off. Wm. Norton had this mortgage. * * * I think the mortgage was paid off, but we owed a little something at the time, for we were talking about it."
It will be observed that he says "we paid it off," not I paid it off; nor the slightest inference that he had paid it with his own money. If his statement then made be true, the most favorable construction would be that he joined with some one else in paying it,—most probably referring by the term "we" to his brother George; and if that be true, then George has some interest, if not an equal or greater interest, than the defendant, in said mortgage. But in his answer in this case he makes no such admission, but claims the benefit of said lien for himself, which shows that his present claim is inconsistent with his former statement under oath, and that, therefore, one or the other must be false. From a legal stand-point, this greatly impairs the value of the defendant's testimony, and strengthens the conviction that this claim is but an afterthought.
Very naturally, in considering this question, the inquiry comes to the mind, why did not the defendant avail himself of this claim in the proceedings for partition? He says he made the fact of having the mortgage known to his counsel, and that his counsel said to him that was not worthy of consideration, since, under the agreement with his father, he was really the owner of the farm. Who was that counsel? None other than the late James Wilson, distinguished for his ability in presenting and maintaining all the rights and interests of his clients. Indeed, the proceedings in the partition case illustrate what I say. In that case, when the discussion and the application of legal principles seemed to weigh heavily against John, this defendant, and George, his brother, who claimed the farms, then Mr. Wilson insisted that, by virtue of their prayer for general relief in their cross-bill, they were entitled to be heard upon a claim for compensation for services rendered their father during all the years that they worked and managed said farms for him. Larison v. Polhemus, 36 N. J. Eq. 506; S. C. on appeal, 39 N. J. Eq. 303. He prevailed, and had such claim considered, and they recovered such compensation as they proved their services to be worth within the period limited by law. But in all that controversy, lasting a long period, no claim was made of any rights of this defendant, as against his father, or his estate, arising from the payment by this defendant of said bond and mortgage. To my mind, it seems incredible that he should have made the statement and claim of right to Mr. Wilson that he now says he made. There was then due upon the bond and mortgage, if anything, over $5,000; and if the defendant himself had regarded the lien of the mortgage as bona fide, and had made the fact known, Mr. Wilson never would have disregarded a matter of such high importance. This consideration alone shatters to atoms the claim of the defendant.
This, however, is not all. The claim is stale, both with respect to the ancestor and his estate, and also the complainant. It needs no argument to show that courts should hesitate a long time before they support a claim which had been kept from the light for over 20 years, and until all the parties interested therein adversely are dead. And this principle can justly be claimed by all those who claim title to the land in question under such ancestor, although it be but five years from the death of such ancestor until the time when the claim is made known. The case in hand strikingly illustrates the danger which may flow from giving credit to such demands. For years there was a contest in open court respecting the title to this land. The defendant in this suit was also defendant in that, and every possible opportunity, as well as every conceivable incentive, was offered for him to present, and, if possible, establish, the lien of this mortgage. By every path he would have been enabled to support, if not maintain, whatever other claim he had to make by virtue of this supposed lien.
I shall advise a decree in accordance with the prayer of the bill. The complainant is entitled to costs.