Opinion
11-21-1895
BENNETT v. FINNEGAN et al.
Mr. Trimble, for complainant. Adrian Riker, for demurrants.
Bill by Peter Bennett against Bridget Finnegan and others to establish a lien on land. Heard on demurrer to the bill. Sustained.
Mr. Trimble, for complainant.
Adrian Riker, for demurrants.
EMERY, V. C. This is a bill filed by a husband against the heirs at law of his deceased wife to establish a lien upon lands of which the wife died seised. The lien sought to be established is for a portion of the purchase money of the lands in question, for which, at the time of the purchase and the conveyance of the lands to the wife, the husband gave his sole bond, which was secured by a mortgage upon the premises executed by the husband and wife. This mortgage the husband subsequently paid off with his own moneys, and upon this payment the mortgage was canceled of record. The conveyance to the wife, and the bond and mortgage for the purchase money, were made on March 22, 1866, and the mortgage was paid by the husband about May 20, 1868, and canceled of record May 25, 1868. Bridget Bennett, the complainant's wife, died on March 9, 1894, and the bill alleges that until that date complainant and his wife lived together in the joint possession of the property, and since her death he has been in sole possession. The wife died intestate, and without issue, and, her heirs at law having commenced an action of ejectment against the complainant, this bill was filed, and a preliminary injunction restraining the suit of ejectment was granted by the late Vice Chancellor Van Fleet. The bill is based upon the theory that the complainant is to be treated in equity as the surety of his wife to the extent that the purchase money of the land conveyed to her has been paid by his money, and that, to the extent of such payment and interest, he is entitled to a lien upon the lands, and to be subrogated to the rights of the mortgagee under the mortgage. The cancellation of the mortgage is alleged to have been made under a mistake and misapprehension of his legal and equitable relation to the property and indebtedness of his wife. The defendants have now demurred to the bill, assigning for causes of demurrer, first, the statute of limitations, and, second, want of equity.
So far as relates to the second cause of demurrer, I am inclined to think that the allegations of the bill are sufficient, at least upon general demurrer for want of equity, without further specifications. The ground of objection in this respect is that the bill only shows a payment of the husband's money for lands conveyed to the wife, and that, when a conveyance is made to the wife under such circumstances, the presumption is that a settlement upon or gift to the wife is intended. Lister v. Lister, 35 N. J. Eq. 49, affirmed on appeal, 37 N. J. Eq. 331. But this presumption is a presumption of fact, and not of law, and is subject to be rebutted by competent and sufficient evidence that the money was advanced by the husband as a loan to the wife, and that the debt for the purchase money was intended to be the wife's debt, and not the husband's. The bill in this case contains the allegation "that, although he [complainant] gave his bond [for part of the purchase money], the debt for which said bond was given was actually the debt of his wife." Under this allegation, I think, complainant would be entitled to make competent proof rebutting the presumption of gift; and the subsequent clause added to this allegation, viz. "being a part of the consideration money due from her to Brown, the vendor, on the conveyance," may be construed, I think, as one reason why complainant alleges it to be the wife's debt, or as a description of the character of the wife's debt, rather than as a limitation of the general allegation that the bond was really the wife's debt. The question, perhaps, is a close one, but, in view of the present rule requiring specifications ofdemurrer, a general demurrer for want of equity, without further specification, should not be sustained unless the defect is clear to the court. Paper Co. v. Greacen, 45 N. J. Eq. 504, 10 Atl. 460.
The objection based on the statute of limitations is more serious, and the question is important. This objection, it is now settled, may be taken by demurrer as well as by plea or answer, and must be considered, if so raised. 1 Daniell, Ch. Prac. (6th Ed.) *560; Partridge v. Wells, 30 N. J. Eq. 176, affirmed 31 N. J. Eq. 362. The defendants claim that, the purchase money having been paid by the complainant in 1868, and the mortgage then canceled, no rights as to the lands can, after 20 years, be asserted under the mortgage, either at law or in equity, either in favor of the mortgagee or of the complainant, by subrogation to the rights of the mortgagee. As between surety and principal generally, the application of the statute to the assertion of legal equitable rights by the surety against the principal is clear, and in many of the cases in which the right of subrogation and the application of the statute has been considered it has been held that the obligation of the principal to the surety arises solely by reason of the payment of the money by the surety, and is, in its nature, a simple contract obligation, which must be prosecuted within the time limited for suits on such contracts. The right to sue is not, in these cases, considered as extended to the time for bringing suit upon the securities to which the surety, for his reimbursement, claims to have been subrogated. 24 Am. & Eng. Enc. Law, p. 322. In the present case this question is not involved or considered, for the reason that the rights of the original mortgagee, to whom complainant claims to succeed, are also barred by the statute, if it is applicable to the case of husband and wife. The debt claimed to be due from the estate of the wife to the husband for money paid by him as surety for her is one for which, as between surety and principal generally, the remedy is legal; and any equitable rights, either by reason of the payment, or upon the mortgage to which subrogation is claimed, would necessarily be barred by the statutes which barred the legal remedies on the mortgage. Kirkpatrick v. McElroy, 41 N. J. Eq. 539, 7 Atl. 647; Smith v. Wood, 42 N. J. Eq. 563, 7 Atl. 881, affirmed Smith's Adm'r v. Wood, 44 N. J. Eq. 603, 17 Atl. 1104. Does the fact that the husband can sue the wife only in equity constitute a sufficient reason for refusing to apply the statute? I think that it does not. In certain cases, such as those of direct and express trusts, the courts of equity have held that the statutes of limitations are not applicable (Partridge v. Wells, supra), but where the whole basis of the equity jurisdiction is founded, not on the nature of the rights involved, but on the existence of the marital relation between the parties, and the continuance of the common-law disabilities as to suits at law arising from this relation, it seems to me that the court of equity, in deciding the substantial question of right between the husband and wife, or persons claiming under them, must apply the same principles which should be applied in deciding upon the same questions if at issue between other persons than husband and wife. This would include the application of the statute of limitations, which, as between other persons than husband and wife, would clearly be applicable to the present case. No case was cited by counsel bearing upon the point, but I find that the same conclusion as to the application of statute of limitations in suits in equity between the husband and the representative of the wife was reached by the court of appeal in a recent English case. In re Hastings (1887) 35 Ch. Div. 94. In this case a loan made by the husband to the wife was held to be barred under the statute of limitations, at the death of the wife, more than six years after the loan. There are no allegations in this bill which show any facts excluding the operation of the statute, either at law or in equity. The allegation as to the joint possession of the property by the husband and wife from the purchase to the date of her death cannot be taken to have this effect, for such possession did not prevent the prosecution of the claim for subrogation if it existed; and after the cancellation of the mortgage the possession cannot be considered as an assertion against the wife's estate of a claim under the mortgage. The demurrer on this point, therefore, must be sustained.
The mortgagee to whose rights subrogation is claimed was not made a party to the bill, nor was any objection made on that account. He may be a necessary party (see 24 Am. & Eng. Enc. Law, p. 324), and, should the bill be further prosecuted by amendment, or should a different view as to the application of the statute be taken upon appeal, it will be advisable for the complainant to consider this point.