Pace v. Bartles

Full title: PACE v. BARTLES.

Court: COURT OF CHANCERY OF NEW JERSEY

Date published: Aug 13, 1890

47 N.J. Eq. 170 (Ch. Div. 1890)

47 N.J. Eq. 170

Opinion

08-13-1890

PACE v. BARTLES.

Paul A. Queen and Martin Wyckoff, for complainant. John N. Voorhees, for defendant.

PITNEY, V. C.

(Syllabus by the Court.)

On final hearing on bill, answer, and proofs.

Paul A. Queen and Martin Wyckoff, for complainant. John N. Voorhees, for defendant.

PITNEY, V. C. This is a bill to redeem, and to that end seeks to have three several deeds of conveyance of land declared to be mortgages. The land in dispute is a farm of 169 21-100 acres of land, of which about 40 acres lie in Morris county, and the remainder, including the improvements, in Hunterdon county. The conveyances which are alleged to have been made by way of mortgage areas follows: First, a deed made by Pierson A. Freeman, sheriff of Morris county, to the defendant, Elias M. Bartles, dated June 17, 1877, acknowledged June 23, 1877, in consideration of $700; second, a deed made by the complainant and his wife to the defendant, dated June 30, 1877, executed and acknowledged July 5, 1877, for the whole farm for the consideration of 2,000; third, a deed made by Wesley Bellis, sheriff of Hunterdon county, to the defendant, dated July 16, 1877, in consideration of $2,001. The complainant rests his right to have these conveyances declared to be a mortgage, and he permitted to redeem the premises, on two grounds: First, a verbal agreement made by the defendant contemporaneous with the several conveyances; and, second, a written agreement, dated and executed on the 9th of July, 1877, executed by the defendant and the complainant, by which the defendant gave the complainant the right to redeem the property at any time within six months at a sum of money therein named. The bill charges that the redemption agreement taken in connection with the several conveyances has the effect of making the transaction in equity a mortgage. It further charges that the complainant was addicted to drink, and because of that, and a general incapacity for business, was unable to properly manage his affairs, and, being in embarrassed circumstances, the defendant took advantage of the situation, under the guise of friendship, to obtain and retain the title to all his property. The facts of the case, most of which are undisputed, are as follows: Michael Pace, the father of the complainant, lived upon and occupied the farm in question for many years, claiming to be the owner. For about 10 years prior to January 1, 1877, he had become, by reason of age and infirmity, unable to attend in person to the management of the farm, and his son George, the complainant, had lived at home with his father and mother, and had worked it. The complainant was dissipated and improvident, and under his management the farm became impoverished, the fences and buildings became dilapidated, and he ran behind from year to year and became financially involved. The defendant kept a country store near by, in the lower end of German Valley, Morris county. The complainant, who was married, and had a family of children, became indebted to him in the ordinary way at his store, and gave him his notes of hand for his account, which he failed to pay at maturity. This commenced as early as 1864. Complainant also became indebted to other persons, and judgment went against him on one of these debts, which defendant loaned him money to take up and satisfy. His debts to defendant increased from year to year. The complainant's father, Michael Pace, joined him as a surety in several notes to the defendant, and on the 18th of February, 1876, the defendant obtained judgment in the supreme court against the complainant and his father, Michael Pace, for $1,021.99 damages, and costs. Executions were issued upon this judgment to the sheriffs of Hunterdon and Morris. When they looked for a description of the property on the records, for the purpose of making levies, no title in Michael Pace could be found. The defendant called on the complainant to furnish him with his father's deeds, and the complainant found among his father's papers several unrecorded deeds for the premises made by Michael Pace's brothers and sisters, or their descendants, to him, Michael, for undivided interests in the premises which had belonged to Michael's father, Daniel. These deeds were placed upon the records, and the levies made accordingly. The premises were advertised by both the sheriffs to be sold on the premises on the 17th of January, 1877. Before the day fixed for the sale Michael Pace died. The bill states that he died on or about the 1st of January, 1877. The defendant swears that it was in October, 1876. He left a will by which he devised these lands to the complainant, George Pace, subject to the following provision for his wife: "And it is my further will that my wife, Mary, shall have the use of my present dwelling-house for a home during her natural life, and be provided with a comfortable living off my said farm and homestead; all the above given to her in lieu of her right of dower,"—and subject to a further charge in favor of the testator's son Daniel, as follows: "I do order and direct my son George Pace that,in addition to the care of my wife, he shall provide a home and support my son Daniel, he being feeble-minded, and unable to care for himself, and that my real estate shall be responsible for said Daniel's care and support during his life." At the death of his father, the complainant took this will to the late George A. Allen, then a practicing lawyer at Flemington, and left it with him, with instructions to have it proven. The witnesses were Holliway W. Hunt, also a practicing lawyer, who prepared the will, and the defendant, Elias M. Bartles. Caveats were filed by the complainant's brothers and sisters against the probate of this will. Such was the situation of affairs on the 17th of January, 1877, when the two sheriffs met on the premises to sell the property. Since the recovery of the judgments in February, 1876, the complainant had become further indebted to the defendant, and his then partner, Naughright, in the mercantile business, in considerable sums of money, for some of which his father was not surety, so that when the sale came on the defendant was interested in having the will established, and also in having the property bring as large a price as possible, so that, with the surplus after paying the funeral expenses, etc., coming by the will to the complainant, he might be in a situation to pay his debts. The property was put up for sale on the premises on the county line, and was bid up to $2,000. At that point it seems to have dragged. A recess was taken to enable the bidders to look about the farm, and then the bids were continued, and two brothers, Andrew and David Philhower, farmers living in the neighborhood, bid up to $3,000, and that was the best bid that could be got. The sale was then adjourned by the two sheriffs, the part in Morris county to be sold in Morristown, and the part in Hunterdon county to be sold in Flemington.

There is some conflict in the evidence as to the circumstances under which these adjournments were made. The complainant swears that the defendant went about and discouraged bidders by telling them that he (Bartles) was going to bid in the property for the complainant, but I think that under the circumstances this story is incredible, since it does not appear that the defendant bid at all, and if he had done so, it was easy enough for him to have made a small additional bid over the last bid of $3,000, while it is clear that the sale was adjourned on the bid of the Philhowers. The defendant denies that he did anything of the kind, and swears that the sale was adjourned by the earnest request of the complainant and his family, who desired to make some arrangement by which the farm could be saved to him. I believe the defendant's story. There was a manifest propriety in adjourning the sale until after the contest over the will was settled, so that it might be known who was entitled to the surplus. Besides, complainant, if it turned out he was the owner, might be able to make arrangements to raise the money and save a sale. The sales were further adjourned by the sheriffs severally from week to week until the 17th of June, when the part in Morris county was struck off and sold to the defendant for $700, and the sale of the part in Hunterdon county was further adjourned until July 7th, when it was struck off and sold to the defendant for $2,001. On that day, immediately after the property was so struck off, the parties entered into an agreement prepared by Mr. George A. Allen, which is the principal basis of the claim to redeem. In the mean time the will contest had been carried through, and the will admitted to probate on the 21st of April. Pending that contest, and previous to the sheriff's sale, the defendant had, at the request of the complainant, paid the funeral expenses and doctor's bills, etc., of the deceased, upon a verbal understanding between them that he was to be repaid out of the property. After the sale in Morris county, and before that in Hunterdon, the complainant and his wife executed to the defendant the deed of the premises before referred to. That deed was prepared by Mr. George Allen, who, the defendant swears, was acting as the counsel of the complainant as well as for the defendant, and I am satisfied that the defendant's statement is true in that behalf. This deed, dated the 30th of June, consideration $2,000, describes the property at length as it is described in the sheriff's levies, contains full covenants of seisin and warranty against incumbrances, with this exception, in the handwriting of Mr. Allen: "Save and except a judgment in the supreme court of New Jersey held by him, the said Bartles, which he is to make out of said property by sale thereon under and by virtue of the said judgment, the object and intent of this deed being for the conveyance of the said lands, that when sold the surplus shall go to said Bartles." This deed was executed by the complainant and his wife on the 4th day of July, 1877, at their house, in the presence of and was acknowledged to Mr. John C. Welch, a master of this court, who lived in the neighborhood. The complainant and his wife swear that this deed was signed by them without knowing its contents or tenor and effect, and upon the promise that the defendant would hold the farm for the complainant. Mr. Welch swears that he explained the deed to both Mr. Pace and his wife in the ordinary way, and that it was executed by them upon a promise by Bartles to give the complainant an opportunity to redeem, and that a writing to that effect was drawn up by him, (Mr. Welch,) signed by Bartles, and handed and left with the complainant, to be held by him until the transaction could be consummated by further sale by the sheriff of Hunterdon, and a more complete document prepared by Mr. Allen. This paper the complainant does not produce, but I am satisfied that the evidence of Mr. Welch, corroborated as it is by that of Mr. Bartles, is true. It will be observed that this deed was executed four days before the sale by the sheriff of Hunterdon. The redemption agreement, prepared by Mr. Allen and executed by the parties on the 9th of July, is important, and is in the following words:

"This agreement, made this ninth dayof July, in the year of our Lord one thousand eight hundred and seventy-seven, between Elias M. Bartles, of the township of Washington, county of Morris, and state of New Jersey, of the first part, and George Pace, of the township of Tewksbury, in the county of Hunterdon, and state of New Jersey, witnesseth, that whereas, by the last will and testament of Michael Pace, deceased, the said Michael Pace, deceased, did give, devise, and bequeath to said party of second part a certain farm, whereon the said Michael Pace resided at the time of his decease, situate in the counties of Hunterdon and Morris, state of New Jersey, and whereas the said party of the first part did seize and levy upon the same by virtue of an execution and executions in his favor on a judgment recovered in the supreme court of New Jersey against said Michael Pace and George Pace, and did advertise the same for sale, to be sold by the sheriffs of Morris and Hunterdon counties, and the said Pace, party of the second part, being unable to pay off and satisfy said judgment, interest, and costs, the said parties to this agreement did make and enter into a verbal agreement as follows: That the said Elias M. Bartles should buy said farm at said sale; that the said Pace should execute, together with his wife, to said Barties, a warranty deed for said premises, and then the said George Pace should have the privilege to redeem the same at any time within six months from and after the date of the sheriff's sale of the county of Hunterdon upon the said George Pace paying to said Elias M. Barties the sum of twenty-nine hundred and sixty-one dollars, and the further sum of two hundred and fifty dollars for the expenses and trouble of said Bartles in and about the purchase of the same:

"Now, this indenture witnesseth, that whereas, in pursuance of the above-stated agreement, the said George Pace, together with his wife, did, on the thirteenth day of June, A. D. eighteen hundred and seventy-seven, sell and convey by deed, under their hands and seals, all said farm to said Bartles, and the said Elias M. Bartles did purchase at the sale of said sheriff of the county of Morris, and at the sale of said sheriff of the county of Hunterdon, said farm so bequeathed to said Pace, as aforesaid, and also so conveyed to said Bartles, as aforesaid, by said Pace and wife. Now if the said George Pace shall at any time within six months pay to the said Elias M. Bartles the sum of thirty-two hundred and eleven dollars, or offer so to do, then the said Elias M. Bartles hereby coven ants and agrees for himself, his heirs, executors, administrators, and assigns, to and with the said George Pace, his heirs,' executors, administrators, and assigns, that he will execute, or cause to be executed, to the said George Pace, his heirs, executors, administrators, or assigns, a good and valid conveyance. in the law for said premises, and deliver the same to said Pace upon his paying to said Bartles the aforesaid sum of thirty-two hundred and eleven dollars, with interest thereon from the date hereof, and for the full performance of this agreement the said parties hereto do bind themselves, their heirs, executors, administrators, and assigns, each to the other, in the sum of five thousand dollars, to be considered as liquidated damages for the full performance of this agreement.

"Witness our hands and seals this ninth day of July, A. D. eighteen hundred and seventy-seven.

"ELIAS M. BARTLES. [L. S.]

"GEORGE PACE. [L. S.]

"Witness present: W. D. ALLEN.

"And it is further agreed between the parties to this agreement that, by way of rent for said premises during the next six months, the said George Pace shall deliver to said Bartles one-third of the corn, oats, and buckwheat now growing on said farm at such mill in German Valley as said Bartles shall direct; and in case said Pace shall redeem said property, as specified in said agreement, of which this is intended to be a part, then the said Barties is to deduct from the amount specified in this agreement for said Pace to pay for said farm the amount he shall realize from the sale of said corn, oats, and buckwheat so delivered to him by said Pace.

"Dated July 9, 1877.

"ELIAS M. BARTLES. [L. S.]

"GEORGE PACE. [L. S.]

"Witness present: WILLIAM D. ALLEN."

The original of this agreement was kept by Mr. Allen, and cannot be produced, but a copy made by his son, William D. Allen, (also being since deceased,) was handed to each of the parties, and these copies are produced. The sum of $2,961 mentioned in this agreement was taken from a statement of items made up by defendant's clerk by his direction upon a sheet of paper, which has been preserved, and is produced in evidence. It is composed of the judgment, which amounted on that day to $1,201.85; or two promissory notes made by complainant and his father, and held by the defendant, one for $92.50, and one for $188.93; the bill of funeral expenses; the physician's bill; the fees of the two sheriffs on the sales; taxes in arrear on the farm; a note against the complainant, held by Naughright and Welch; bill for professional services of Mr. Allen. Most of these were just claims against the estate of Michael Pace. Besides these were four notes of the complainant alone, held by the defendant and his partner, Naughright, amounting in the aggregate to $417.89, the total being $2,941.60. The promissory notes, the defendant swears, were all surrendered to the complainant at the time of the execution of the contract, and he assumed and afterward paid the taxes, amounting to $260. The complainant denies that any notes were surrendered, but I am satisfied that in this the defendant tells the truth. I may say here that he is a respectable merchant, and known to the court to be a reliable man. The error of $19.60 in the amount to be paid, viz., $2,961 instead of $2,941.60, arose in this way: Complainant in his own handwriting, on the same paper, and at the bottom of the items which amounted to $2,941.60, made a statement of what the farm would cost him if he paid the bids made to the sheriffs, and put down the amount bid to the sheriff of Morris,$700; amount bid to sheriff of Hunterdon, $2,001; and the taxes on the farm, amounting to $260,—which footed up to $2,961; and then, when the amount to be put in the redemption agreement was to be fixed, he wrote down the $250 to be paid to him for his services under the figures $2,961 instead of under the figures $2,941.60, as he should have done. This was an accident, and was afterwards discovered and corrected by him in pencil, as appears by inspection of the paper, and I find the difference, $19.40, credited to complainant on the books of Bartles & Naughright as of July 28, 1877. Immediately after the papers were signed, the defendant made an entry in his book of accounts as follows: "Michael Pace farm Dr., to amount paid for farm, $2,961, "—and all entries thereafter of receipts and disbursements on account of the farm are kept under that head; none appear to be charged to complainant. The complainant retained possession of the farm, and worked it for that year, but paid nothing on account of the $3,211 redemption money. The defendant swears that he received for his share of that year's crop, in grain and other material from the farm, in value $108.88, giving the items, and that he expended on the farm prior to the 1st of April, 1878, in lime and taxes, $127.06, giving the items. The share of the defendant in the crops was put at one-third, instead of the usual amount of one-half, because the complainant undertook to support his mother. The complainant made no progress towards raising the money or paying the redemption money, and the last day allowed by the agreement, January 9, 1878, seems to have passed without any new arrangement. In March, 1878, the parties made a new agreement, under seal, by which the defendant "demised, granted, and let" the farm to the complainant for one year, commencing April 1, 1878, upon the same division of the crops, viz., two-thirds to the complainant and one-third to Bartles. This agreement contains this provision: "Said Bartles paying unto said George Pace, for work and labor upon said farm, and for providing his mother, Mary Pace, with the rooms she now occupies in the mansion house upon said farm, and for providing her with all necessary care and attention, clothing, food, fuel, lights, etc., necessary for her comfort, the two-thirds of all the produce raised upon said farm." And further on the complainant agreed, in consideration of the two-thirds of the crops, to support his mother, and furnish her with-necessary care, clothing, food, fuel, etc., and "that he has to give up and yield peaceable possession of the said premises at the expiration of his said term."

Under this agreement the complainant remained in possession of the farm until the 1st day of April next, and held over thereafter until about the 20th of the same month, when he was in substance turned out of possession upon summary proceedings before a justice of the peace, based upon the lease last mentioned. I am satisfied from the evidence that the constable came to the premises for the purpose of ejecting the complainant. Mr. Hunt was there on behalf of the defendant, because in addition to ejecting the complainant his mother was to be dealt with. When the complainant saw that it would be useless to make any further resistance he agreed to go away quietly, and then the neighbors were called in with their teams, and they moved him and his belongings away. Mr. Hunt took the mother away in his private carriage. She seems to have gone willingly with her son. Mr. Hunt swears, and I believe him, that on that occasion the complainant stated to him that he knew that he was obliged to go off, and that he would have to go away finally, but that he would stay there as long as he could to bother Bartles. On the 31st of July, 1878, a trifle more than a year after the original agreement prepared by Mr. Allen had been executed, the complainant employed Mr. Theodore J. Hoffman, a member of the bar, living and practicing at Clinton, to call on the defendant for a settlement and an accounting, alleging to Mr. Hoffman that the defendant really owed him. The complainant and Mr. Hoffman called at Mr. Bartles', and Mr. Hoffman stated his errand. Mr. Bartles produced, without hesitation, the original statement of July, 1877, showing the items of the $3,211, and also, as I understand Mr. Hoffman's evidence, his books of account. Mr. Hoffman took the statement of July 9, 1877, went over each item going to make up the sum total, and asked the complainant, one by one, in defendant's presence, whether it was right or not, and the complainant in each instance admitted that it was right, except the single item of Mr. Allen's, $260.72, which he said was too much. He made no objection to the $250 for the defendant's services. Mr. Hoffman then said to him, in Mr. Bartles' presence, that he had deceived him in his statements, and that he was entirely in the wrong. Mr. Hoffman then made up anew statement on the basis of the original $3,211, but just how he made it up does not appear. He did add interest from July 9, 1877, but whether he added anything for indebtedness from the complainant to the defendant accruing since July 9, 1877, or whether he credited the complainant with the produce of the farm or not, does not clearly appear. I find an unpaid account of $104.37 against complainant on the Bartles & Naughright's books, accruing between July 28, 1877, and November 14, 1878, and defendant's account kept with the farm shows a considerable balance against it in July, 1878. These matters may or may not account for the result. At any rate, in some way Mr. Hoffman made the amount $3,600.04, and thereupon, at Mr. Hoffman's instance, the parties entered into a new agreement, which was reduced to writing by Mr. Hoffman, and signed by the parties, being indorsed on Bartles' copy of the original Allen agreement of July 9, 1877. It is in these words: "I do hereby, for myself, my heirs and assigns, promise and agree that George Pace, in the foregoing agreement mentioned as the party of the second part, shall have the right and privilege of redeeming the lands and premises in the above agreement, or copy of agreement, describedaccording to the terms and conditions of the same, at any time between the date hereof and the first day of October next, and that I, the said Bartles, will reconvey said premises as in said agreement stated. It is also agreed that this privilege shall not interfere or affect the lease now existing between said parties. Amount of redemption money, consisting of various items and interest due Bartles to July 9, 1878, is $3,603.04. Dated July 31, 78. E. M. BARTLES. GEORGE PACE. Witness, THEO. J. HOFFMAN." Mr. Hoffman, in answer to a question put by complainant's counsel, says this: "If you ask me to give my recollection about that new agreement, there was nothing said about it until the account was all gone over, and I think I suggested that if Mr. Pace consented to everything except that single item, that it would be proper to make a memorandum of it on the agreement." Prior to his leaving the farm, the complainant had several times asked the defendant to convey him the farm and take a mortgage, but he declined, but was always willing to accept his money. From the time he left the farm until his son, William Pace, and his counsel called upon the defendant in the year 1887, the complainant made no demand whatever upon the defendant for a conveyance, or did any act or made any declaration to indicate that he claimed any right of redemption in the premises. On the contrary, immediately after the removal from the premises, he made a claim against the defendant, as owner thereof, to pay him in cash for the support of his mother, and the defendant did so from that time until the mother's death, in November, 1881,—a period of over 2 1/2 years. These payments were made monthly, many of them by check to the order of Pace, which are produced, and they are not denied by him. He lived at no time more than six or eight miles from the premises, and during his mother's life-time called upon the defendant regularly to collect the compensation for her support. In 1884, the weak-minded brother of complainant, Daniel Pace, became a charge upon the town of Tewksbury, and the overseer of the poor, and some of the township committee, called upon defendant, as the owner of the property, for the support of the pauper, on the ground that his support was charged upon the land by the will of Michael Pace. There is here a slight conflict in the evidence, and I think the defendant's account is the more accurate. The overseer swears that the defendant told him that on the sale of the farm under execution there was a surplus of about $500 in his hands, and he did not know to whom he ought to pay it. If this were true, 1 do not see how it would help the complainant in his present suit, but the defendant's statement of what occurred is the more reasonable and satisfactory. He referred the overseer to the statement of July 9, 1877, and showed that the whole purchase money of the farm was expended in paying the debts of Michael Pace, with the exception of $417.89, the aggregate of the four notes of the complainant contained in said statement, upon which Michael Pace or his estate was not liable; and he says that he pointed that out to the overseer and the township committee men when they called upon him, and that that was the only surplus that was talked about between them. The defendant, however, yielded to the demand of the township of Tewksbury, and on the 27th of January, 1885, paid them. $100' in full, and the pauper died about that time.

Immediately after complainant left the farm the defendant began to improve it by building new fences, ditching and reclaiming land not hitherto tillable, and by a liberal application of fertilizers, which resulted in a gradual improvement of the crops; and then, in 1884, when the products of the farm had sufficiently increased to warrant the expenditure, and the mother and weak-minded son were both dead, he built a new barn and cow-houses, a creamery and corn-crib, and had previously made quite extensive repairs upon the dwelling, so that the farm had cost him, exclusive of interest, and the amount paid for the keeping of the mother and imbecile brother, and for fertilizers, about $8,100. Again, about the date of the sheriff's sale, certain cousins of the complainant, who were descendants of the complainant s grandfather, Daniel Pace, the father of Michael Pace, claimed that their share in the property as heirs at law of Daniel Pace had never been realized by them, or paid for by Michael. Defendant made some partial examination of the merits of the claim, including the genealogy of the family, and could find no trace of any release from them, and so, in 1883, their claim having been put in a lawyer's hands for suit, settled with the claimants by paying them in all $293. This he says he did in good faith, supposing that he was the absolute owner of the property, and that it was good policy to quiet the title in this way. He further swears that the payments made to George Pace for the support of the mother, and to the overseer of the poor for the support of Daniel, were made on the same supposition. He says also that the improvements that he put on the farm were made in the full belief that his title was undisputed; that he was so advised by the Aliens, father and son, at the date of the transaction, and had not the least suspicion that after the expiration of the time fixed in the agreement for redemption he was under the least obligation to convey; and that the agreement of July 31, 1878, made on the intervention of Mr. Hoffman, was, as he supposed, a gratuity on his part.

There are one or two matters in dispute between the parties which I will mention here. The brother of the complainant, William Pace, swears that pending the advertisement of the farm by the sheriffs he raised the money, or made arangements to raise it, and offered to pay to the defendant the amount of his judgment if he would assign it over, and that the defendant declined to do so, saying that his lawyer advised him not to do it. The defendant denies this, and says he has no recollection of any such negotiation or offer. In this I think he is probably mistaken. But, admitting all that the witness, WilliamPace, swears to to be correct, I do not see how it helps the complainant in one of his leading allegations, namely, that the defendant was scheming and contriving to get hold of the farm at an under-price, and to cheat him out of it; for it is probable, from all the evidence, that long before the property actually was sold, and presumably before this offer was made, defendant had, in pursuance of complainant's promise to secure him out of the property, paid or assumed the debts and funeral expenses of the deceased, and other obligations outside of and over and above the judgment, which it was understood between him and the complainant were to be repaid to him out of the surplus of the sale of the property under the executions, and that the control of the judgment and executions was absolutely necessary to the defendant in order to protect himself in the premises; and that he was entirely justified in refusing to assign the judgment or give up its control upon any other basis except that of an absolute payment and satisfaction.

Another point in controversy is as to the conduct of the defendant, in connection with an attempt on the part of the complainant to procure a loan upon the premises from one J. W. Sharp, a moneylender in the neighborhood. While the complainant's right to redeem was still unexpired, he applied to Sharp for a loan of $3,000, presumably explaining to Sharp the situation. Sharp wrote to the defendant, inquiring as to the value, etc., of the property, and the defendant replied in a letter which appears to have been lost. The dispute is as to the tenor of the defendant's letter. A brother-in-law of the complainant, Zachariah Sutten, swears that he called upon Mr. Sharp in behalf of the complainant, and asked for $2,800, secured by a mortgage on the farm, and that Sharp promised to give him an answer on a future day they mentioned; that he called on that day, and that Sharp declined to make the advance, handing him the letter from Bartles. Sutten had no knowledge of Bartles' handwriting; had never seen him write, and here is no proof whatever that the letter that Sharp showed Sutten was writen by Bartles. The whole evidence on this point of this witness is as follows: "When you got there to see Mr. Sharp, what did he have? Answer. A letter. He sat by the side—He went to his desk and got a letter out, and said: 'I have got a letter from Barties, saying'"— (Interrupted.) He was then forbidden to say anything that Sharp said. "He passed the letter over to me, and I looked at it a little. I can't remember what all was into it word for word. Saying that he would not be safe in letting him have the money. Signed, 'E. M. BARTLES.'" Mr. Bartles denies this in the most positive manner, and says that he wrote him that he thought he would be safe in letting him have the money; and further says, in substance, that he does not recollect whether or not he said anything about the title, but that if he wrote him anything on that subject he wrote him the truth. The defendant knew that no releases could be found for some of the shares of the Pane family, and that the persons representing those shares were aware of this, and claimed to have an interest in the farm. That interest was of perhaps little value, but Mr. Bartles thought so much of it that he afterwards paid nearly $300 for it. Then there was the claim of the widow and the imbecile son to support, neither of which could be said, with safety, to be entirely cut off by the sheriff's sale, and both of which were recognized by Mr. Bartles. It is possible, if not probable, that Mr, Sharp's letter of inquiry to Mr. Bartles covered title as well as value, and that Bartles' answer mentioned these matters, and that such mention may have had its influence with Mr. Sharp. If all this be true, it comes far short of showing that Mr. Bartles willingly discouraged or interfered with the complainant in procuring a loan upon the farm. I think that the complainant has entirely failed to prove any management or contrivance on the part of the defendant to take advantage of the circumstances and situation of the complainant to wrest his property from him for less than its value. In all this 1 believe Mr. Bartles. I think it would be dangerous in the extreme to place reliance upon such evidence as that of Sutten.

Another matter in which the parties differ is as to the value of the property. On the one side, the complainant and some of his witnesses claim that it was worth from $6,000 to $8,000, and that it was not an unusual or incredible thing for a gentleman like Mr. Bartles to take a mortgage on a property of that value for the sum named in the redemption agreement. On the other hand, Mr. Bartles says that the property was not worth, with a clear title, more than $3,500, and that he was, before he began to spend money upon it, anxious and willing at any time to have reconveyed upon the basis of the redemption agreement. Those witnesses on the part of the complainant on whom I most rely as to value are Messrs. Andrew and David Philhower, and they say they think the farm worth about $6,000 in 1877. One or two other witnesses swear to the same effect. But it must be here remarked that the property was exposed for sale on the 17th day of January, a date most favorable for sale of farms; that quite a concourse of people were there present; that some pains was taken to encourage bidders, and that the best bid that could be got for it was $3,000. On the other hand the witnesses of the defendant place it at about the defendant's estimate. They are gentlemen personally known to me, and in whose judgment I have confidence. I refer to John C. Welch, a man of great experience in the buying and selling of farms, and a capitalist who lends money on bond and mortgage. He swears that he was applied to to loan money to George Pace on this farm. At that time he wanted from $3,000 to $3,200, and he said that after looking at the place he did not want to loan on it at all. "Question. Why not? Answer. It was not any more than worth it, and George was not a very desirable farmer at that time." And hesays the farm was in a very bad condition, and growing worse all the time. Mr. William S. Naughright, another resident of German Valley, is a man of intelligence and experience, and was familiar with the farm, and knew its condition, and says that it had been very much depreciated of late, and he states it in this way: "Taking the condition of the farm at that time, and its location, I would consider that it was worth between three thousand and four thousand dollars; that is, thirty-five hundred dollars I would think a fair price for it, taking the location of the place." Mr. Hunt is also familiar with the value of farms, and accustomed to appraising them for the purpose of loaning money, and he valued it at $25 an acre for the 90 acres of tillable land, and at $8 an acre for the balance, being 80 acres of broken, rough land. Theodore Naughright, also a man of intelligence, a surveyor, made a survey of the whole farm, and found it contained only 169 acres and a fraction, instead of 180 acres, as was supposed. He also made a subdivision of the property, with measurements showing the amount of the different qualities of land. Tillable land contains 92.25 acres; young timber and swamp, 62.50 acres; 8.50 acres of sprout land; 3.46 acres, also sprout land; 2 acres of rock. He made an estimate of the value of the whole by estimating these various subdivisions. He made the 92.25 acres worth $30 an acre, the swamp and sprouts, 73.50 acres, $7 an acre, and the rock lot worth nothing, making a total of less than $3,300. In this connection it must be borne in mind that the complainant had, by the terms of the two written agreements, 15 months from the first of July, 1877, viz., to the 1st of October, 1878, to find a purchaser for this property, or a person who was willing to loan him the money to pay the defendant; that he made efforts to borrow the money; that he had friends helping him, and that he does not show that he had a single offer to purchase, or that he found any one who was willing to loan him even $3,000 upon it. I think practically that his opportunity to redeem extended six months further, up to the first of April, 1879, since it is manifest that up to that time defendant was always willing to have accepted his money and interest. Now, in my judgment, the fact that he was unable to extricate himself from the situation he was in is strong corroboration and indorsement of the judgment of value given by the witnesses of the defendant. It is also perfectly clear that at that time, and in fact ever after, until his son took the matter up, in the year 1887, the complainant supposed that his time of redemption expired absolutely at the days named in the agreements; that he never looked upon the agreement as being a mortgage which gave him a right of redemption until it was foreclosed, and that on that account, and for that reason, he made every endeavor that he could to make a loan, or find a purchaser for the property. Another circumstance worthy of notice is that the complainant swears that prior to the sheriff's sales, when the negotiations between him and the defendant were taking place, defendant promised to take from him a little mortgage. He did not pretend that the defendant ever agreed to take from him a mortgage for the whole of defendant's advances and compensation for his services. He evidently went upon the basis that defendant, if he took a mortgage at all, was to take it for a part only of his demand; and he admits that on several occasions before the expiration of the time limited by the redemption agreement, he asked the defendant to take a mortgage for the whole amount, and that he declined.

My conclusion, upon a review and consideration of all the evidence, is that at the time of the sheriff's sale $3,500 was a fair price for a complete title to the premises, free and Clear of any charges in favor of the widow or of the weak-minded son, and that at a forced sale they could not have been expected to produce much more than $3,000; that at the time of the signing of the Allen agreement the promissory notes held by the defendant individually, and by him and his partner, Naughright, against the complainant and his father, or either of them, were delivered up to the complainant intentionally, and nothing taken to show for them or for the debts of the father paid by the defendant, except the Allen agreement; that it was the intention and belief of the parties that the effect of the Allen agreement was not to give the complainant the right to redeem, which he would have under an ordinary mortgage, but that he should have such right, and that only, as the strict letter of the agreement gave him; and that the object of the parties was that the defendant should become the actual owner of the property, subject to the privilege of repurchase by the complainant.

Turning now to the Allen agreement of July 9, 1877, above set forth, I find in it no obligation on the part of complainant to do anything except by the supplement to deliver to the defendant, by way of rent for the premises, one-third of the corn, oats, and buckwheat then growing on it. It is in substance an agreement by the defendant to convey to the complainant the premises within six months, at a fixed sum, and nothing more. The consideration of this agreement, as it may be gathered from the recitals, is the joining of the complainant's wife in a deed to the defendant in such manner as to bar her inchoate right of dower. The judgment itself was satisfied by the last-mentioned deed, and the sales upon the judgment, for by the special clause inserted in the complainant's deed, the defendant, in effect, covenanted to make the judgment out of the property by sale under it, and the object of the deed was declared to be, in addition, of course, to barring the wife's dower, to enable the defendant to control the surplus moneys, if any, arising on the sale, and apply them to the payment of the unsecured claims which he held against the complainant and his father jointly and severally. Such surplus money proved to be just sufficient for that purpose, for complainant bid for the premises $2,701 over and above the taxes, which amounted to $260, and his total claims against father and son, includingthe mortgage, and not including the taxes, was $2,681.60. The Allen contract, in effect, says this: "I held a judgment against you and your late father, and an execution and levy upon land of which your father died seised, and which he devised to you. You and his estate owed me other moneys. You gave me a deed with your wife joining to bar her dower, so that I could secure the surplus money, and I, having sold the property under execution, and bought it for enough to pay my claims, and extinguish all indebtedness, will now give you six months in which to redeem the property, upon terms of paying me back the amount so bid, with $250 for my services. If you fail, the property to be absolutely mine; you to retain the possession of it for the six months, rendering me one-third of the crops as rent. "Now this writing I construe to be a contract for repurchase simply, and not a defeasance, notwithstanding the use of the words "redeem." That the mere use of the word "redeem" is not sufficient to make a contract for reconveyance a defeasance is well settled. Robinson v. Cropsey, 2 Edw. Ch. 138,146, on appeal, 6 Paige, 480. The word "redeem" means "repurchase." The words are synonyms, and the first has come into use with lawyers, to describe the right of a mortgagor of lands, by reason of the old practice which prevailed in England of making absolute conveyances of lands by way of mortgage, with a covenant to re-convey upon the payment of the debt, an actual reconveyance being made. The form of conveyance by way of mortgage now, and for many years past, in use in this country and state dispenses with the necessity of a reconveyance, but the phrase "equity of redemption" is still in use to describe the mortgagor's right. The distinction between a contract for repurchase and a defeasance is shadowy, and difficult to define, and in fact they cannot be distinguished without taking into consideration all the facts and circumstances surrounding the transaction. This seems to be admitted by all the authorities. Careful examination of the text-writers, and of a great many decided cases in England, and in this country, lead me to the conclusion that there are three leading criterions: First. Was there a debt either created at the date of the deed or existing prior Thereto from the grantor, or some other person, to the grantee, which was not paid and satisfied by the conveyance, but which survived and continued in existence notwithstanding the grant, so that the grantee might have sued upon it? Second. Was the price named and paid considerably less than the value of the thing granted? The first of these criterions—the continuance of the debt—has always been looked upon as a strong circumstance, and as being almost, if not absolutely, controlling. Conspicuously is this the case in instances of an attempt to turn absolute conveyances into mortgages wholly by parol. With regard to the second consideration, the difference in value, that has been applied freely in cases of absolute assignments of moneyed securities, bonds, mortgages, and the like, whose value was easily ascertainable with approximate certainty, and when the assignment has been for a consideration much less than the intrinsic and absolute value of the security assigned. Here the difference in value has also been held well-nigh conclusive, for it is not to be believed that a person would assign a moneyed security of the present value, say of $1,000, for a consideration of $500, except by way of mortgage, retaining an absolute equity of redemption. A third criterion is found in the conduct of the parties with regard to the possession and use of the subject of the grant after the date of the grant. Does the grantor retain possession with the right to use it as if he was the owner? Does he pay for the use of it an amount just equal to the interest on the consideration named? and the like.

The following authorities illustrate the value of the criterion of debt or no debt. Goodman v. Grierson, 2 Ball & B. 274; Conway's Ex'rs v. Alexander, 7 Cranch, 218; Robinson v. Cropsey, 2 Edw. Ch. 138, 6 Paige, 480; Glover v. Payn, 19 Wend. 518; Holmes v. Grant, 8 Paige, 243; Brown v. Dewey, 1 Sandf. Ch. 56; Flagg v. Mann, 14 Pick. 478; Williams v. Owen, 5 Mylne & C. 303; Slutz v. Desenberg, 28 Ohio St. 371. In Hogan v. Jaques, 19 N. J. Eq. 123, Chancellor ZABRISKIE, at page 128, after stating that the line of distinction between a defeasance and a contract to reconvey is very shadowy and indistinct, proceeds as follows: "We find it laid down that an agreement, to be sufficient to convert an absolute deed into a mortgage, should be mutual; that is, that the grantor should be bound to pay the debt, and the grantee to reconvey on payment. It is not perhaps necessary in all cases to convert an absolute deed into a mortgage that the liability of the grantor to pay the debt should remain; and yet a continuing debt seems so much a part of our idea of a mortgage, that the proof that an absolute deed was intended as a mortgage must be very plain where the debt does not remain, or is considered as paid by giving the deed." Again, in De Camp v. Crane, Id. 167, at page 171, he says: "I admit the force of the position so ably urged by the counsel for the defendants that when the question is whether the transaction constitutes a mortgage, or is a sale, with an agreement to reconvey, the fact whether there is a continued debt or liability of the mortgagor is very important. It is difficult to conceive of a mortgage which, in its very essence, is a pledge as security for a debt, without some one being liable for the debt. But I am not willing to say that there can be no mortgage without a debt, or some one being bound, at all events, to pay the money. A mortgage may be expressly made in that manner." Again, in Phillips v. Hulsizer, 20 N. J. Eq. 308, 314, he says: "The fact that there is no continuing debt is a strong circumstance, where there is any doubt, to show that a transaction is a contract for repurchase, and not a mortgage. This was clearly and strongly stated in the opinion of this court in Hogan v. Jaques, 19 N. J. Eq. 128, and De Camp v. Crane, Id. 171." To the sameeffect is the language of Lord MANNERS In Goodman v. Grierson; of Lord COTTENHAM in Williams v. Owen; of Chief Justice MARSHALL, SO often quoted, in Conway's Ex'rs v. Alexander; and of Chief Justice BRONSON in Glover v. Payn. The recent case of Cake v. Shull, 45 N. J. Eq. 208, 16 Atl. Rep. 434, is in language and decision to the same effect. The counsel for complainant felt the force of this consideration, and insisted that, notwithstanding the absence of any written obligation on complainant's part to pay, the legal liability still remained, arising, according to their view, out of the facts of the case. But I cannot adopt this view, and think the writing signed by the parties negatives it; and in connection with the actual surrounding, the security would have defeated an action at law by defendant against complainant. They further rely upon certain expressions in the answer, which speak of the debt as still in existence as a debt from complainant after the date of the contract to reconvey. I have carefully examined the answer in view of this criticism, and do not think the expressions referred to should or can properly be used for the purpose claimed. It is not necessary to rehearse them. The context shows they were not used to describe the relations between the parties in this behalf.

So with the agreement prepared by Mr. Hoffman, while acting as counsel for complainant, July 31, 1878. He came to defendant with complainant, claiming on behalf of the latter that defendant owed complainant money. Such indebtedness could only arise out of the surplus moneys in defendant's hands arising from the sale and purchase of the farm. The demand for surplus money was an affirmation of the absolute character of the sale. The new agreement of redemption was prepared by Mr. Hoffman at his own suggestion to make a written record of complainant's approval of the accuracy of defendant's statements. Defendant was without counsel, and ought not, under the circumstances, to be held responsible for the language of that paper. No doubt he expressed himself as willing to extend the time of redemption, and Hoffman took him at his word and inserted the claim for that purpose. It is well settled that the character of the transaction must be determined by the condition of affairs at the date of its consummation, and any subsequent agreement to redeem cannot affect the question. I do not think the Hoffman agreement can be used to make against the defendant on the question of mortgage or no mortgage, especially in view of the fact that all the charges and credits made on defendant's book after July 9, 1877, on account of the farm, are made as charges against and credits to "the Michael Pace farm," and not to and against the complainant. My conclusion is that the debt which defendant held against complainant was extinguished July 9, 1877. I have already expressed my opinion as to the value of the farm. I find it was worth very little more than the price fixed for redemption. Turning to the conduct of the parties in the matter of possession and rent, we find the property rented to complainant, not upon the basis of interest on the sum fixed for redemption, but of a share of the produce. Thus all the indications point to a conditional sale, and not a mortgage, and such is my conclusion. But if there were any doubt on this part of the case, or if my conclusion were different on it, the subsequent conduct of the complainant would, in my judgment, debar him from now coming to this court for aid to enforce his right. From the date of the agreement of July 9, 1877, and until her death, in November, 1881, he received from the defendant compensation for the support of his mother. From July 9, 1877, to April 1, 1879, this was in the shape of the use of the premises at a reduced rental, and afterwards in actual cash. This compensation was made by the defendant because, and only because, he was the beneficial owner of the land of which the woman's husband died seised. It was so received by the complainant. If he was the beneficial owner of the farm, it was his duty to support her. Every time he called on defendant and received from him a payment on that account he said, in effect, "You, and not I, am the owner of the farm." This conduct operates not only by way of estoppel, but as a strong indication of what his understanding was as to the nature of the original transaction. Then, with regard to the improvements put on the premises by the defendant, complainant does not deny that he knew of them as they were being made. He lived in the neighborhood, and had every opportunity to do so, yet he did not open his lips, but stood by in silence, and permitted a mere mortgagee to spend thousands of dollars in improvements on the farm, and now seeks to redeem without paying for them; for at the hearing the position was boldly advanced by complainant's counsel that defendant could not be allowed for money spent in new buildings and extraordinary repairs, while it seemed to be assumed, and appeared clearly enough, that the present value of the farm would not more than cover, even if it would reach, its actual cost to defendant. To say nothing of the inequitable nature of the claim as to improvements advanced by complainant, it seems to me that by his laches in standing by in silence all these years while the defendant was spending his money on the farm, as well as by his conduct in receiving payment for his mother's support, he has disentitled himself to the aid of the court. On both grounds I think complainant fails, and his bill must be dismissed, with costs.