Opinion
04-11-1896
PRICE v. GRAY.
Martin Wyckoff, for complainant. Geo. M. Shipman, for defendant.
Bill by Ellis L. Price against Emma Gray to foreclose a mortgage on real property. Decree for complainant.
Martin Wyckoff, for complainant.
Geo. M. Shipman, for defendant.
BIRD, V. C. This is a bill to foreclose a mortgage given by Jacob A. Mellick to Price, the complainant, to secure the payment of $325, the aggregate amount of certain billsdue to Price for goods sold, the amount of which bills Mellick, as the clerk of Price, had been authorized to collect, and which he had collected, and used in his own interest. The defense is a failure of title in Jacob A., Mellick, the mortgagor, and a failure of valuable consideration upon the part of the mortgagee. The failure of title in Jacob A. Mellick is set up by the defendant, Mrs. Gray. Mrs. Gray's defense rests upon the following facts: She says that Henry Mellick, who was the father of the said Jacob A., became acquainted with her many years before the year 1878, and paid such attentions to her as to win her affections, and to obtain from her a consent of marriage; that in January, 1878, the marriage contract was entered into, one of which considerations was a promise upon his part to advance to her, for the purpose of purchasing furniture for a dwelling, $500, and to make to her a deed of conveyance for the tract of land which is covered by the mortgage of the complainant in this case; that the time fixed for the marriage was the 18th day of March next following; and that before that time Henry H. gave to her, and that they took the title deeds to the premises in question to a scrivener for the purpose of having a conveyance of the title made to her on or before the day fixed for the marriage; that afterwards, and before the 18th day of March, under false pretenses, he prevailed upon her to consent that the scrivener might deliver up to him the said title deeds, and also to consent that the time for the marriage ceremony should be postponed; that he took the title deeds, and procured to be made a conveyance of the premises to his said son, Jacob A. In the deed was a provision that the grantor, Henry, should enjoy the rents and profits thereof during his life, or, in other words, that the grantee, Jacob A., should not have the possession until after the death of the grantor, which conveyance so made to his son, Jacob A, was recorded; that afterwards, and on the 6th day of April next following, they went to the scrivener, who prepared a deed, which was signed by Henry H., acknowledged, and delivered to her, the grantee, and that then the marriage ceremony was immediately performed; that she then caused the deed to be recorded, and they at once went into possession of the premises. After they had lived upon the premises four or five months, Mrs. Mellick discovered that her husband had made a conveyance of the said premises to his son, Jacob A., prior to the time of the conveyance to her. They lived together as man and wife until 1881, when they separated. Her husband, Henry H., died in 1889, 11 years after the transaction complained of. The mortgage in question was given in August. 1890. The bill was filed to foreclose the mortgage now in suit April 6, 1894.
As between these parties, on which side is the strongest equity? The consideration of marriage was a good and valuable one. So also was the payment, by way of mortgage, of an existing debt, though possibly not of so high or solemn a nature as that of marriage. But in considering the equity of parties in such cases, whose conduct is not impeachable for actual fraud, many facts are necessarily often taken into the account besides the consideration which moves the contracting parties. In this case I am led to inquire whether or not Mrs. Gray has not lost her rights to make the defense which she does because of her laches. And also to inquire whether her status as a married woman was such as to justify the court in excusing such delay. She discovered the transaction which she alleges was fraudulent within four or five months after it was committed, yet she took no steps to remove the cloud from her title, or in any manner to assail the conveyance to Jacob A., until she was called upon to answer the bill of complaint in this cause. Thus she allows 14 or 15 years to elapse before she attempts to impeach the title of Jacob A., and at least 10 years before the mortgage under which the complainant claims was executed. During this time, Henry H, the grantor and husband, has died. Surviving, as he did, until the year 1889, there was ample opportunity to procure the benefit of his testimony on the one side or the other, the loss of which by his death could be chargeable to no one but Mrs. Gray. As the case stands, there is nothing to support it but her own testimony. It is true, there is nothing to impeach her testimony directly; but the court cannot do otherwise than inquire why it was, under the circumstances of the case, that she waited so long before exhibiting a claim of title to the fee in these premises. The strong inference always is that such delay is encouraged by the conviction that, so long as the other party to the contract survives, his statements of the facts may be in direct conflict with the claimant's. Nor is the fact that Mrs. Gray was a married woman, and that one of the parties to the alleged fraud was her husband, an excuse for this delay. As stated, she not only discovered the alleged fraud perpetrated by her intended husband within four or five months after the transaction, but they actually separated in 1881, so that she was not only under no influence because of her marital relations, but in a situation where she may fairly be presumed to have had the very strongest incentives to proceed to protect and enforce her rights.
Again, the title of Jacob A., under which the complainant claims, was prior in point of time to that of the defendant, Mrs. Gray. If the equities be equal, under the rule that where the equities are equal he who is first in point of time would be protected, the complainant is entitled to the prayer which he asks for. Mrs. Gray claims that she is entitled to protection by the court because she was in possession, either by herself or byher tenant, and that rent was paid to her. This has no application whatever in this case, since by virtue of her deed under which she claims she was entitled to the possession. As already appears, the deed which Henry H. gave to Jacob A. expressly reserved the right to Henry H. to continue in the possession during his lifetime. Therefore the conveyance by Henry H. to his intended wife gave to her the right of possession which Henry had reserved. These facts appear upon the record, and the possession by the wife was entirely consistent with the record, so that, if the complainant had knowledge of the fact, as he constructively had in the law, there was nothing inconsistent in his taking the title as he did, by way of mortgage. It is true that Henry H., the husband, died in 1889, as the mortgage was given in 1890, and the testimony shows that the then Mrs. Mellick, the present Mrs. Gray, was not in possession. It is also true that she claims the right through the tenant who was in possession, but he not only refused to pay her rent as her tenant, but promptly denied her having any claim upon him as owner. Again, I think it may safely be said that the complainant in this case was a bona fide purchaser for a valuable consideration. In the first place, the mortgagor had collected the moneys of the mortgagee, and appropriated them to his own account. For this I think there can be no doubt but Price could have proceeded against him by capias. New York Code, § 549. In accepting the bond and mortgage this right of action was abandoned. That this was a highly valuable right, none will deny. Price thereby changed his position for the worse. White & T. Lead. Cas. Eq., 75; Martin v. Sale, 1 Bailey, Eq. 1. In the second place, Price, the creditor, extended the time of payment for a year. In the third place, the acceptance of the bond and mortgage, being a security of a higher nature, and under seal, was an extinguishment of the simple contract liability. These views seem to be supported by the following authorities: Sipley v. Wass, 49 N. J. Eq. 463, 24 Atl. 233; Goodman v. Simonds, 20 How. 343, 370; 3 Add. Cont. p. 1240.