Opinion
05-16-1908
LAKE et al. v. WEAVER et al.
John J. Crandall, for complainants. Melosh & Morton and Gilbert Collins, for defendants.
Suit by Frank Lake and others against Josephine T. Weaver and others. Decree for defendant Josephine T. Weaver.
The primary purpose of the bill was to obtain an injunction to prevent Josephine T. Weaver from establishing a deed at law which she was seeking to do by virtue of the statute. P. L. 1808, p. 694, § 60.
John J. Crandall, for complainants.
Melosh & Morton and Gilbert Collins, for defendants.
GARRISON, V. C. Samuel W. Weaver died in 1872, testate, his widow, Josephine T. Weaver, being the executrix of his will. There were three children, Theodore S., born in 1855, Alphonso, born in 1857, and Ella Etta born in 1859. Alphonso died in 1888. Theodore died in 1892. Ella Etta intermarried with Rufus Smith, and is still living, as is also Josephine T. Weaver, the widow of Samuel W. The complainants herein, Josephine Maude Weaver Lake and George H. Weaver, are the children of Theodore S. The will of Samuel W. Weaver gave one-third of his property to his wife, and the remaining two-thirds to his three children, to be equally divided among them "together with all the profits and income thereof, after the expenses of their education, clothing and board have been defrayed, to be conveyed to them by my executrix when the said Ella Etta Weaver shall have arrived at the age of twenty-one, to have and to hold the same."
By an account tiled in the orphans' court of Atlantic county by Josephine T. Weaver, the executrix, on the 12th day of September, 1872, it appears that the balance of the personal estate of the testator in her bands amounted to $7,245.63. Samuel W. Weaver died seised of certain real estate in Atlantic county. The bill charges that in the eight years elapsing between the date of the death of Samuel W. Weaver and Ella Etta's attaining her majority the executrix "had used and consumed the whole of the residuum of testator's estate in her hands" for the education, clothing, and board of the children. On the 28th day of February, 1889, Theodore S. Weaver gave a quitclaim deed to Josephine T. Weaver, his mother, the executrix of his father's will, for all of his right, title, and interest in the real estate of which his father died seised. As Alphonso was then dead without widow or children, this real estate belonged one-third each to the widow, to Theodore, and to Ella Etta. The existence of this deed is proven beyond all questiou, and is admitted by the complainants. It was lost in 1893, it is proven that before the delivery of this deed Theodore and his mother, the executrix, had gone over their accounts and reached the conclusion that Theodore had drawn more money from the mother than he would be entitled to receive out of the personal estate of the deceased father.
The contention of the complainants was that this deed was without consideration, and was a scheme to deprive the second wife of Theodore of any interest in this real estate; that Theodore conveyed the land to his mother to be held by her in trust for Theodore's children for the purpose of depriving his then wife who was not the mother of the children) of any interest therein. Apart from the fact that the second wife herself signed and acknowledged this deed—which she would scarcely be thought to have done if the purpose was to deprive her of what otherwise would be her right—there was no proof of any such trust, and the charges of the bill in this respect must fail for lack of any evidence whatever to support them. The contention of the defendants was that this deed was in payment of what Theodore owed his mother. As will be seen when the facts are further developed, I do not find this to be so.
Other contentions of the complainants were based upon events which must be briefly recited in order to make the decision clear. Mrs. Weaver made a contract with people named White to convey this real estate to them. When she failed to convey they brought an action for specific performance against her, and in that, suit she pleaded in her answer that she only had title to one-third, another third being in Ella Etta, and another third in the children of Theodore S., namely, Josephine M. W. Lake and George H. Weaver, the complainants in this suit. The last named were of course not parties in the specific performance case. The complainants here contend that Mrs. Weaver is bound by the statements in that answer. Leaving aside the question as to whether her answer in a suit to which they were not parties could bind her to them, I do not think that, in view of my finding herein that this deed is a mortgage, there is any tiling inconsistent in her statement that the title was in them at that time. If it be a fact that she held this deed merely as security (and that is what I find to be the fact) then all that she really had was a lien for what was due her, and the equitable title was in the children of Theodore, the complainants in this suit. After the Whites had obtained title to Mrs. Weaver's third they brought a suit for partition against Ella Etta and the children of Theodore, but as Mrs. Weaver was not a party to that suit nothing therein binds her. In an application to open that decree I had occasion to deal with many of the aspects of this transaction, and my opinion therein will throw some light upon my view of the circumstances. It will be found recorded in White v. Smith (N. J. Ch.) 65 Atl. 1017. From all the proofs I find that Theodore S. Weaver did obtain from his mother, who was the executrix of his father's will, sums of money. That in 1889 they had an accounting by which they reached the conclusion that he had drawn more money than would be coming to him from the personal estate of his father; that to protect his mother he conveyed to her, by the deed of the 28th of February, 1889, his interest in the real estate; and that the purpose of each of the parties to that transaction was to secure the mother with respect to what they deemed was an overpaynient.
I therefore find that this deed should be treated as a mortgage.
It is curious that Mrs. Weaver never attempted to have the deed recorded until she began the proceedings sought to be enjoined by the bill in this suit, although it was in existence for many years after its execution. There is much in the case which leads me to believe that for a long time Mrs. Weaver's state of mind was to refrain from asserting or exercising her rights under the conveyance, and thus practically to make a gift to Theodore's children. But she never effectuated this intention—she never made an executed gift. Her attitude was passive, not active, and she afterwards changed her mind and determined to assert her claim. I know of no legal reason why she may not do so. The children of Theodore are volunteers, and unless it be found that she made a gift to them they have no standing to compel her to forego her rights with respect to this conveyance.
Undoubtedly the deed when executed vested title in her, as a mortgagee. On its face it vested absolute title in her. The burden of showing tbat she is not the absolute owner rests upon those who dispute it. Winters v. Earl, 52 N. J. Eq. 52, 28 Atl. 15 (Van Fleet, V. C, 1893), affirmed on opinion below, 52 N. T. Eq. 588, 33 Atl. 50. Since the date of the deed in February, 1889, less than 20 years have elapsed, and it cannot be held that the statute of limitations barred the right of the mortgagee, even if the deed be treated as if in fact a mortgage. Colton v. Depew, 60 N. J. Eq. 454, 46 Atl. 728, 83 Am. St. liep. 650 (Ct. of Errors, 1900). And in addition to this, it lias been held that where land has been conveyed absolutely, as security for a loan, the aid of equity can only be invoked by the grantor, or those claiming in his right, by recognizing the debt as an existing lien upon the land, even if the debt has been barred by the statute of limitations. Sturdivant v. McCorley, 83 Ark. 278, 103 S. W. 732, 11 L. R. A. (N. S.) 825, in which latter report will be found a note with many other cases.
If the charge of the bill binds the complainants, then Mrs. Weaver would be permitted to hold this deed as a mortgage for all the moneys which she proved that she advanced to Theodore, because that charge is that she expended all of the personal property in the education, clothing, and board of the children prior to the date of distribution named in the will, namely, the attainment by Ella Etta of her majority. But the defendant Mrs. Weaver has not insisted upon any such claim in her favor. She has not presented a complete account as executrix. If her failure to do this could work any injustice to the complainants, then she should suffer for such failure. But, as just shown, it cannot, because they allege what is much more unfavorable to them, namely, that she had properly expended all of this personal property under the terms of the will before she was required by the terms of the will to distribute the residuum. Therefore, no Injustice is done to the complainants, the children of Theodore, by adopting the accounting of the defendant Mrs. Weaver. She set aside, as if belonging to Theodore his proportion of the total personal property found by the orphans' court to be in her hands as executrix in 1872 at the time of the accounting in that court. This amount of money is $1,628. Theodore, in his own handwriting, sometime after the year 1878, made a memorandum showing that he had received from his mother $2,568.42. This included what he charged himself with up to that time. Since the exhibit contains the items, I see no occasion to lengthen this opinion by restating them.
The items, in addition to those just referred to, which I find were advanced by Mrs. Weaver to Theodore, and for which she has a right to hold the deed as a mortgage are as follows:
| Board bill paid by her for him while he was in Chicago | $ 50 00 |
| Two chattel mortgages upon his furniture paid off by her at his request, one of $72.00 and one of $62.00 | 134 00 |
| Amount advanced by her to him in connection with the Iron Steamboat Company | 600 00 |
| Amount advanced to enable him to go into the oil business, or in connection with the oil business | 130 00 |
| These items, aggregating $914 together with the sum admitted by Theodore as above, make $3,482.42. Leaving out the matter of interest, the computation would then be as follows: Total amount advanced by Mrs. Weaver to Theodore | $3,482 42 |
| Amount of Theodore's share of personal property | 1,628 00 |
| Balance | $1,854 42 |
Of course these figures will be changed by the calculations of interest; but the principle upon which the amount will be settled is as just indicated, and Mrs. Weaver will therefore be decreed to hold this deed as a mortgage for the amount which that computation shows to be due.
Since the laud has been sold in the partition suit and the interests of the respective parties transferred to the purchase money paid into court in that suit, the decree in this suit must be drawn in view thereof.
The form of the decree will be settled upon notice.