Opinion
12-31-1885
STOY v. STOY and others.
C. E. Hendrickson, for complainant. M. V. Bergen, for defendant Stoy.
On bill to foreclose.
The facts are stated in the opinion.
C. E. Hendrickson, for complainant.
M. V. Bergen, for defendant Stoy.
BIRD, V. C. This bill was filed to foreclose a mortgage given by the defendant Stoy to Stella B. Lilly, dated March 29, 1883, to secure the payment of a bond for a like sum. At the time of the execution and delivery of this bond and mortgage, it was delivered to Stella B. Lilly. At the same time said Lilly executed an assignment of the said bond and mortgage, and delivered them to the said complainant. The defendant Stoy resists the complainant in her attempt to recover the amount due upon the said bond and mortgage. He says, except for $1,000 and interest, they are without consideration and usurious. Mrs. S. insists that the said bond and mortgage, above the said $1,000, was a gift to her byher husband. The question is, can it be considered a gift? I will state the principal facts.
Mr. S. called upon Mr. Jenkins, his counsel, and told him he was going to give his wife a mortgage on his property for $5,000, as a present or gift, and asked him if it could be done. Mr. Jenkins told him it could through a third party, provided he had no creditors. He then told Mr. Jenkins to draw the papers. He drew them, S. giving to Mr. Jenkins a deed containing a description of the property. About one week after this, the papers were executed and delivered. Mrs. Lilly and Mr. Jenkins met Mr. Stoy and wife at Mr. Stoy's house. In the presence of all the parties, Mr. Jenkins told Mrs. Lilly that Mr. Stoy intended to give his wife a $5,000 mortgage on his property. The mortgage was then made to Mrs. Lilly, with the understanding that she should assign it to Mrs. Stoy. Mrs. L. said she so understood it. Mr. S. was present during the conversation, and immediately afterwards executed the bond and mortgage. Mrs. L. executed the assignment. All three of the papers were immediately delivered to Mrs. Stoy, who handed them at the same time to Mr. Jenkins, requesting him to have the mortgage and assignment recorded. Mrs. S. paid for the recording. Mrs. S. speaks of the origin and consummation of this transaction. Her language is: "He asked me if I would give him a $1,000 mortgage that I had on my brother's farm. He said he was in debt, and it was right for him to pay his debts off, and I told him it was dreadful to be in debt so soon after his father's death, and if it continued in that way it would all be gone soon; and I said unless he gave me something for the mortgage I would not give it to him. I then proposed that he should give a deed for the farm, and he said he would not. It was his own proposition to give me a mortgage for $5,000. I told him I would take it. He told me to see Mr. Jenkins, and have it done in a lawful manner. I went and saw Mr. Jenkins, and he told me it would be necessary to have a third party." She says in that same interview that her husband said: "In case he was to get into trouble, or anything should happen them, I would have that as my own, and with that and my life-right in the property I could get along very nicely. That is exactly what he said." Mrs. Ludlum, called by defendant, says that she asked Mrs. S. how she came to get a $5,000 mortgage out of Mr. S., and that Mrs. S. said she would not let her husband have her $1,000 until he gave her a $5,000 mortgage. She says that Mrs. S. added: "I did it for the best. I did it to save our home, so that the 'Doc' could not put any more incumbrance on our property."
If this transaction was a gift, the defense cannot prevail. Clearly it had all the solemnities of the most important contract. Mr. Jenkins, Mr. Lilly, Mrs. Lilly, and Mrs. Stoy understood that Mr. Stoy was making a gift of the bond and mortgage to his wife. Such gifts are universally upheld in the law. That the courts are disposed to uphold such transactions, see the case of Alter v. Aller , 40 N. J. Law, 446, and the many cases there cited. I refer also to Lister v. Lister, 35 N. J. Eq. 49, someof the features of which are quite similar to the case before me. In that case the chancellor was sustained by the court of last resort. See 37 N. J. Eq. 331.
I think the complainant is entitled to the $5,000, and interest and costs. I will so advise.