Wilson v. Terry

Full title: WILSON v. TERRY et al.

Court: COURT OF CHANCERY OF NEW JERSEY

Date published: Nov 2, 1905

70 N.J. Eq. 231 (Ch. Div. 1905)

70 N.J. Eq. 231

Opinion

11-02-1905

WILSON v. TERRY et al.

Frank Durand and David Harvey, Jr., for complainant. James D. Carton and Gilbert Collins, for defendants.

EMERY, V. C.

Suit by Frederick F. Wilson against Georgiana B. Terry and others. Heard on bill, amended bill, answer, replication, and proofs. Decree for defendants.

Frank Durand and David Harvey, Jr., for complainant. James D. Carton and Gilbert Collins, for defendants.

EMERY, V. C. The complainant's bill is filed by him in his individual capacity and as administrator of his deceased wife against the two defendants, Mrs. Terry and Mrs. Smith, the sisters and heirs at law of his wife. The general object of the bill is to have the absolute deed under which the wife at her death held the title to a hotel property at Asbury Park, called the "Laurel House," declared to be only a mortgage given to secure the wife for the advances made, or liabilities assumed, by her in the payment of debts incurred by her husband, in the purchase and improvement of the property. The money for the payment of these debts of the husband, amounting to about $6,000, was procured from the Long Branch Banking Company, upon the individual note of the wife for that amount, on the transfer of the property to her by the husband, and it is claimed by the bill that the object of the conveyance to the wife was to secure her for the liability assumed on the note, and that the note was subsequently paid out of the rents of the property. The entire indebtedness is alleged to be paid, and a decree is asked declaring and directing a conveyance from the heirs to the complainant. The bill was originally filed by the complainant alone; but, being in effect also a bill to redeem, including an account of theamount due on the mortgage, the administrator of the alleged mortgagee was thought to be a necessary party, and at the hearing the bill was amended by consent making complainant a party in that capacity. No claim, however, is made for rents received beyond the payment of the mortgage, and it is alleged by the bill that complainant, as well as his wife, had control of the rents after the execution of the deed. The circumstances under which the deed to the wife was executed were as follows:

The complainant in July or August, 1883, agreed to purchase of Rev. George Clarke the land in question, which was then unimproved, for $8,000, and paid $200 on account of the purchase money. In the fall of 1883 complainant, before securing title, commenced the erection of a large hotel building on the premises, which was ready for renting by May, 1884, and was then rented to a Mrs. Pemberton for three years at $1,600 a year, besides $225 per year for the rent of two stores in the building, altogether $1,825, all of which was paid to complainant before the delivery of the deed in December following. Complainant had not sufficient means to pay for the building erected, but had from his own property made payments on account to the extent, as he claims, of about $4,000, including the amounts received from rent. One thousand seven hundred dollars was paid to the mason, of which $1,300 was paid by conveying to the mason a property owned by complainant and taken at that value, and complainant claims to have paid besides about $600 to Martin, a carpenter, on account of his bill, between $200 and $300 to the painter, and other payments to the slater and men working on the building, the amounts of which are not specified. He also paid Barber, Towner & Fielder about $2,000 on account of their bill of $4,000, borrowing for this purpose the note of a Mrs. Harrison, which was indorsed over by him to this firm. There is no sufficient reason to doubt that the complainant before the passing of the title, about December 15, 1884, had expended from his own funds (including the rents of the property) about $5,000 (including the $2,000 note) towards the purchase and improvement of the property. There still remained debts to the amount of about $6,000, and complainant's means, as well as his credit, were exhausted. Complainant had previously arranged for a loan of $9,000 on the property from the executors of a Robert Patterson, but beyond this does not seem to have been able to borrow from outsiders money on the property. Mrs. Wilson had considerable property in land and securities, but had not in cash sufficient means to pay the balance due on the property. The builders were pressing for payment, and threatening suits and liens, and at least one suit was commenced against Wilson, on which judgment was obtained. In this situation Wilson applied to his wife, who agreed to take over the property and pay the outstanding debts. The arrangement by which this agreement was carried out was as follows:

On December 15, 1884, Mr. Clarke, the vendor, together with Mr. and Mrs. Wilson, Mr. David Harvey, Jr., counsel for Mr. Wilson, and Mr. Hawkins, counsel representing building creditors, and Mr. Johnson, the cashier of the Long Branch Banking Company, met at Freehold. Mr. Clarke delivered his deed for the property, made out to the complainant, dated October 21, 1884, and acknowledged November 28, 1884, by Mr. Clarke and his wife, before an officer of Westchester county, N. Y., where they then resided. Complainant executed and delivered to Clarke his own bond (bearing the same date as the deed) for $8,000, the entire purchase money, payable in three years, which was secured by a mortgage on the premises executed by Mr. and Mrs. Wilson to Clarke, dated October 21, 1884, but acknowledged on December 15, 1884. Wilson delivered, also, his bond for $1,000 to the executors of Robert Patterson, also payable three years after its date, and Mr. and Mrs. Wilson also executed a mortgage on the property to secure this bond. The bond and mortgage were both dated October 21, 1884, but this mortgage was executed and acknowledged December 15, 1884, the first day of the meeting at Freehold, but because of the omission to have checks certified the deliveries were not made on that day. On the following day the Patterson executors paid to Clarke $8,072 (being the principal sum, with interest from the date of the mortgage), taking an assignment of his mortgage, and the $1,000 loaned on the mortgage was, according to Mr. Harvey, paid to the complainant, but was probably used to pay the expenses of obtaining the loan and the interest due Mr. Clarke. On the 16th of December Wilson and his wife executed to Edward M. Fielder a general warranty deed for the premises, subject only to the $9,000 mortgages, for the nominal consideration of $1. This deed to Fielder was made for the purpose of conveying the title to Mrs. Wilson, and Fielder did not assume the payment of the mortgages. The deed from Fielder and his wife, drawn and dated on the 15th of December, was acknowledged and delivered on the 19th. This was a bargain and sale deed, conveying the premises to Mrs. Wilson for the nominal consideration of $1, subject to the $9,000 mortgages, the payment of which was assumed by Mrs. Wilson. Whether Fielder was present on the 16th does not clearly appear, but his wife was not there, and the delay of three days in conveying the property to Mrs. Wilson was probably due to the necessity of having her join in the deed. On December 15, 1884, and before the conveyance to her ofthe hotel property, Mrs. Wilson and her husband executed to the Long Branch Banking Company a mortgage upon other property in Asbury Park belonging to Mrs. Wilson to secure the sum of $6,000. This sum is declared to be payable according to the condition of a certain bond in the penal sum of $12,000, but the bond has not been produced. This mortgage was recorded on the date of its execution, and before any of the deeds or mortgages on the hotel property were delivered, and before the mortgages were executed. Mrs. Wilson also assigned to the bank, as further security for the loan, mortgages on property in Cincinnati, held by her as her own property. On the same day, December 15, 1884, Mrs. Wilson gave her individual note to the bank for $6,000, payable three months after date, and the amount of this note, less the discount $93, was placed to her credit in the bank on December 17th. By checks on this account, all dated December 16, 1884, amounting to $5,800.50, Mrs. Wilson paid all the bills outstanding against the property. This included $180 insurance and $82.50 taxes on the property. The $1,000 received from the Patterson executors was probably taken for the payment of the commission and expenses of the loan, about $400, Mr. Wilson says, and the interest due to Mr. Clarke. A memorandum in Mrs. Wilson's diary, under date of December 16th, states that Clarke received $8,478.53. On this transfer of title no evidence of debt from Mr. Wilson to his wife was given, nor was any written agreement or other paper executed either at the time or afterwards to further explain or qualify the transaction as between Mr. and Mrs. Wilson, nor does Mrs. Wilson seem to have been specially represented by counsel. The value of the property at the time of the transfer has been estimated at from $15,000 to $20,000. None of the defendants' witnesses fix the value at less than $15,000 in 1884, which figure is also fixed by one of the complainant's witnesses. The estimates of value, given after this length of time and only from general knowledge and recollection of the values of property at that time, are, of course, to be considered with some caution. Complainant and Mr. Clarke, estimating the values rather from the basis of the cost of the land and buildings, fix, respectively, about $19,000 and $20,000 as the value, in which latter estimate Mr. Winsor, another witness for complainant, concurs. He was in 1884 secretary of a building loan association, which made loans in Asbury Park, and also owns property in the neighborhood and has bought and sold property in that locality. The property was in a good location, and a fair value at the time, had the question been one between seller and purchaser dealing at arms length, would probably not have been as low as $15,000; neither, on the other hand, as between borrower and lender, dealing on the same basis, would a sum as large as $15,000 have been loaned on the property. Mr. Johnson, for the bank, had declined to loan $3,500 on the property subject to the $9,000 mortgage.

It is clear, I think, that in this transaction, and in order to determine whether by the agreement between the parties made at the time, the absolute title was to be conveyed to Mrs. Wilson, or whether, as complainant claims, she took the title only to secure her against the liabilities she assumed on the note and mortgages, due weight must be given to the fact that the transaction was betweeen husband and wife, and that the husband was dealing with the wife's money for his benefit in relieving him of obligations he had incurred. The relations then existing between husband and wife were not only amicable, but it appears, also, the wife was devoting her own income to the support of herself and husband, as for personal reasons she did not wish him to continue active work in his profession of minister. The complainant, Mr. Clarke, the vendor, and Mr. Harvey, the attorney for Mr. Wilson, are the only survivors of the persons attending the meeting at Freehold, and their evidence is strongly relied on to support complainant's claim. Mr. Clarke, whose testimony impressed me as entirely truthful, says frankly that it is difficult after the lapse of 20 years to recall the conversation; but it was the general subject of conversation in the room that Mr. Wilson was to transfer the property to his wife for this loan from the Long Branch Bank. He says it was understood that after he conveyed the title to Mr. Wilson he conveyed it to Mr. Fielder, and Mr. Fielder to Mrs. Wilson, as security for a loan, but that he cannot after this lapse of time swear that it was stated by any one there in Mrs. Wilson's presence that the property was to be conveyed to her as security. His impression, moreover, is that the conversation he speaks of in relation to the loan was between him and Mr. Johnson, the cashier of the bank, with which Mr. Clarke also kept his own account.

Mr. Harvey's account is somewhat more definite. He attended as representing Mr. Wilson in procuring the loan of $9,000 from the Patterson estate. He says that there was talk about an additional amount of $6,000, which was to be raised to pay claims against the property incurred by Mr. Wilson, over and above the amount he was borrowing, and it was stated that Mrs. Wilson was to raise the money from the Long Branch Banking Company on her securities, and that to secure her Mr. Wilson was to convey the Laurel House property. Mr. Harvey was called on to prepare the deeds at that time, and did so. As he thinks, an application had been made to the hank for a loan on Wilson's note, indorsed by his wife, and he recalls distinctly the statement of Mr. Johnson (the cashier of the bank) on that day that he could not loan on that kind ofsecurity, because Mrs. Wilson was a married woman, and that be thinks this was what suggested the conveyance to Mrs. Wilson, so that she could become the principal. The deeds from Wilson to Fielder and from Fielder to Mrs. Wilson were prepared at Mr. Wilson's direction, and Mrs. Wilson was present the first day when the talk occurred, but whether on the second or not Mr. Harvey is not sure. On cross-examination he says that his recollection is that it took a little persuasion to get Mrs. Wilson to go into the deal. So far as this witness can now recall in detail the conversation about the deed, between the parties who were there, including Mrs. Wilson, they finally agreed that Mrs. Wilson was to execute a note to the bank, and the amount of $6,000 was agreed upon, and the property was to be conveyed by Mr. Wilson to his wife, through Mr. Fielder, and it was stated that it was taken to make Mrs. Wilson safe for her liability. The exact words witness cannot give, and he thinks nothing was said about giving Mr. Wilson anything to show that it was for security only. He did not understand from the conversation that Mrs. Wilson was to own the property, but the impression he got was that she took title as security for her liability, but he does not know that word was used. As he recalls, when the matter first came up, Mrs. Wilson didn't care to have anything to do with it. She was opposed at first to giving her note. She took the position that the property would not secure her, and he thinks they persuaded her that it would. Mr. Harvey was Mr. Wilson's counsel, and Mrs. Wilson had no counsel in the transaction. As to Mrs. Wilson's assuming payment of the mortgages for $9,000 as part of the consideration of the conveyance, Mr. Harvey, who drew the deed, says that the assumption was omitted purposely from Fielder's deed, because he wished to relieve him from any responsibility; that he does not recall any suggestion to him that he should or should not put the clause in Mrs. Wilson's deed; that he did it of his own accord, simply because she was the grantee, and it was his custom when making conveyances from husband to wife through third persons, where the intention is to vest the title in the wife; that he followed his custom of drawing papers, and probably didn't give any consideration at all to its not being a natural thing to do if the wife was going to hold the deed as a mortgage.

Mr. Wilson's own account of the circumstances of giving the deed is substantially this: That after arranging for the $9,000 loan from the Patterson estate he applied to Mr. Johnson for a $3,500 loan on his note, with a second mortgage on the property, but Mr. Johnson did not think the security was quite sufficient. He then asked Mrs. Wilson if she would not raise the money. Mr. Johnson said, if Mrs. Wilson world put up certain securities, he would loan $6,000. Mrs. Wilson said she would, but she would like to be secured. "As I had nothing better, I said to her, 'Take title to secure you for the papers you put up.'" And this was agreed upon. This seems to be an account of a conversation between the witness and his wife alone, before the meeting at Freehold, and complainant's account of the interview at Freehold is confined to a statement of the papers which were then executed to carry out the agreement between him and his wife. Complainant's evidence as to transaction with the wife was admitted subject to objection, and leave reserved to move to strike out the evidence at the argument My impression at the hearing was that under the ruling in Smith v. Burnet (Err. & App. 1882) 35 N. J. Eq. 314, and Adoue v. Spencer (Err. & App. 1900) 62 N. J. Eq. 782, 794, 49 Atl. 10, 56 L. R. A. 817, 90 Am. St. Rep. 484, the evidence was inadmissible, under the evidence act (Revision of 1900, P. L. p. 363, § 4), excluding "testimony to be given by any party to the action as to any transaction with or statement by any testator or intestate represented in said action, unless the representative offers himself as a witness on his own behalf, and testifies to any transaction with or statement by his testator or intestate, in which event the other party may be a witness on his own behalf, as to all transactions with or statements by such testator or intestate, which are pertinent to the issue." The administrator being a necessary party in the suit, the rule considered by me in McKinley v. Coe (1904) 66 N. J. Eq. 70, 57 Atl. 1030, to be settled in this court, that the evidence was admissible in suits against heirs or devisees, to which the administrator was not a party, does not apply.

Counsel for complainant urge that the evidence is admissible as evidence given by the administrator on his own behalf under the statute. The complainant was, however, called generally and the evidence was given on his behalf individually, and not specially on his behalf as administrator. On a bill to have a deed declared a mortgage the interest of the mortgagor and of the personal representative is perhaps the same, so far as it involves the conversion of real estate into a personal security, upon which the personal representative is entitled to receive the amount due, but it is essentially an adverse interest, in that it seeks to impose on the personal representative a contract of the testator under which the representative is bound to account under the mortgage. Regularly, therefore, the representative would be a party defendant in such suit, not a party complainant, and the fact that complainant is himself the representative, and must therefore be complainant in that character, does not make the evidence given by complainant, tending to establish hisclaim against the personal estate, evidence given by the representative on his own behalf; i. e., on behalf of the estate. Excluding the evidence of complainant as to the circumstances under which the deed was originally given, I do not think the evidence of Mr. Clarke and Mr. Harvey, the only other witnesses as to the facts transpiring at the time of execution of the deed, warrants the conclusion that the title was intended to be conveyed to the wife by way of mortgage only, and not absolutely. Their evidence must be taken in connection with the things actually done, and their statements as to the wife taking title go no further than to show that the property was supposed to be the wife's security for the liabilities she was personally incurring, and which she was expected to pay, and was able to pay. This would be the case whether the title was absolute or by way of mortgage, for the wife undoubtedly supposed she was running some risk in raising the money, and had nothing to show for it but the property. The documents executed are all consistent with the intention, as between husband and wife, that the title then taken should be absolute in the wife. Her assumption of the mortgages for $9,000 is not to be explained in any other view, nor is the absence of any writing or document, showing either that any debt from the husband to his wife existed or that the husband held any right in the property, consistent with the view that the title was not absolute. The wife was acting without counsel, and it was a situation in which no counsel would probably have advised her that the transaction was a safe or prudent loan. She should, therefore, not be deprived of any right or advantage given to her by the transfer, unless it clearly appears that it would be inequitable for her to retain it. Nor should she be deprived of the title she received, except upon very clear and satisfactory evidence that she then understood that the title was not absolute in her, but was then intended merely as a mortgage, and that her husband had the right to call for a reconveyance. The general rule in all cases where absolute deeds are claimed to be mortgages is that the burden of proof is upon the grantor, and his proof must be clear and convincing, and the present case is within the application of the additional rule or presumption relating to conveyances of property from the husband to the wife, viz., that the conveyances, so far as they are not based on consideration, are presumed to be intended as gifts of the husband's property to the wife.

In this case the husband and wife were not bargaining with each other at arm's length, but the wife, at the husband's instance, was undertaking to relieve him of the liabilities then pressing him for the purchase and improvement of the property, and to save the amount he had already expended. The amount which Mrs. Wilson assumed and advanced was much more than would be advanced as a mere loan on the property, and was nearly, if not quite, the full value of it. The husband's entire property was exhausted, and beyond the amounts paid by Mrs. Wilson he was liable on the $2,000 note of Mrs. Harrison, borrowed for his benefit and indorsed over to Towner for debts incurred in building the hotel. Mrs. Wilson did not assume this or any other indebtedness or obligations beyond the $15,000 for debts which were chargeable on the property itself. It is probable that Wilson's financial situation at the time was a motive, at least on his part, and probably on the part of both husband and wife, for having the absolute title of the property in his wife, and for passing the title in such manner as to clearly show a purchase on her part for the fair value of the property. All documents indicated a purchase, and none were executed which indicated a loan to the husband or a mortgage of his interest in the land, and this view that Wilson's financial position and prospects was one reason for making the transaction an absolute sale to the wife, rather than a mortgage, derives additional probability from Wilson's subsequent conduct. Several judgments were obtained against him in the years 1887 and 1888, amounting altogether to about $1,000, and in 1898 one for $800 was obtained by the bank, of which Mr. Johnson was still the cashier. Two of the judgments recovered in 1887, amounting to about $330, and which were recovered against complainant and his brother, were satisfied by defendant's brother in 1901, and the other judgments remained outstanding until about the same time, and the judgment held by the bank, on which over $1,000 was due, was settled with Mr. Johnson for $250. In explaining Johnson's willingness to make this settlement for the bank after the $6,000 note given by Mrs. Wilson had long been paid, complainant says that Johnson was a good man, that he offered to take in settlement this $250, which came out of property complainant owned, and that he (complainant) didn't then claim this hotel as his individual property. But, in view of Johnson's participation in the transaction at Freehold, it would seem probable that no agreement was made in his presence that the title to Mrs. Wilson was taken only as security for her liability on the note.

The view that Wilson's financial condition received some consideration at the time, if the transfer may be fairly inferred from Wilson's own statement at the hearing of his evidence is to be considered. He says that in 1891 and 1892, after the notes and mortgages were paid (for the most part by Mrs. Wilson's own money), he talked to his wife about reconveying the property, and shesaid "that, as I hadn't been able to keep it in the first place, perhaps it had better remain where it was at present." He seems to have acquiesced in this as long as Mrs. Wilson lived, without making any further claim on her for the property. And in October, 1897, in letters hereafter referred to, he assures her that the property is hers, and the only claim then made against her was that she had said when the Laurel House was out of debt she would make him a monthly allowance. This conclusion that the transfer papers as executed contained the whole agreement between the parties, and that Mrs. Wilson intended to buy the property, is corroborated by the only other direct evidence bearing on the intention of the parties prior to the execution of the deed, being the testimony of Mr. Smith, the husband of the defendant Mrs. Smith, a sister of Mrs. Wilson. He was in business at Asbury Park, and for some years before 1884 had been Mrs. Wilson's agent in many transactions, collecting rents, procuring insurance, etc. He says that in the summer of 1884 Mrs. Wilson came to him in relation to the purchase of the hotel, and he ascertained for her the amounts against the property, which were approximately $15,000, including the purchase of the land. After this ascertainment, and in the latter part of September or early part of October, Mr. and Mrs. Wilson, together with witness and his wife, met at the office of Mr. Hawkins, who represented most of the claimants. The question of Mrs. Wilson's purchasing the property came up, and Smith's advice was asked as to whether it would be advisable for her to purchase or not, and Smith said to her that it would be a good purchase, a good property to own at that price. She was reluctant to purchase, but finally consented to purchase, if, on further investigation, there were no other claims against the property, and said that she would pay them off and buy the property as an investment. When she consented to do this, Wilson said to his wife: "Frank, that is the best bargain you ever made in your life." After this interview, and in October, the witness, on Mrs. Wilson's behalf, went to see Mr. Johnson (in whose bank witness was also a depositor) about placing a loan on Mrs. Wilson's property in Asbury Park to secure a loan of $6,000, and told Johnson that Mrs. Wilson wanted to purchase the hotel property, that she had not the money, but had mortgages on Cincinnati property which she was about to turn into money, and wanted to borrow this money temporarily until she could cash the mortgages. After going over the security she could give, Mr. Johnson agreed to loan the $6,000 to her, taking the Asbury Park property and the further security of the Cincinnati mortgages. Smith reported this agreement to Mrs. Wilson, and this was the plan actually carried out in December. The delay of over two months occurred because, as Mr. Smith says, it was subsequently ascertained that there was an additional charge on the property, and this was more than Mrs. Wilson wanted to pay, but finally she consented to go ahead and pay the extra amount and take the property. A memorandum made by Mrs. Wilson in her diary for October 22, 1884, indicates that the amount of her note was then to be $5,000, but one of December 13, 1884, states that she and her husband went to Long Branch to see about getting the $6,000 mortgage. Mrs. Smith corroborates her husband as to the interview in Mr. Hawkins' office, but her evidence of statements in the presence of testatrix is, by stipulation, to be stricken out, if Mr. Wilson's evidence is not competent, and I therefore do not consider it. Smith's evidence, if true, is very important, for the arrangement of purchase proposed in his presence and acquiesced in by complainant was the one actually carried out, and agrees with all the written evidence of the transaction.

Complainant's counsel suggest that the arrangement for purchase may have been subsequently changed, but clear proof of this is necessary, as the change was one against Mrs. Wilson's interest, rather than in her favor, and the proofs offered in relation to the interview at Freehold are not sufficient to establish such an entire change in the original plan. Wilson's own evidence, if competent, does not prove or suggest that there ever was any change in the plan agreed on between himself and his wife, and, if his evidence is considered, it must be noted that he did not contradict this evidence of Smith and his wife as to the interview in Mr. Hawkins' office and his declaration to his wife that this was the best bargain she had ever made. In support of the contention that this plan of purchase, if originally made, was afterwards changed, it is urged that the execution of the deed from Clarke to Wilson, and the subsequent transfer to Mrs. Wilson, show that Wilson, and not Mrs. Wilson, was to purchase. But a more probable reason for the transaction in this form is that Clarke, the vendor, having agreed to sell to Wilson, had the deed, signed by himself and wife, made out to Wilson in October and acknowledged in November in New York state, where Clarke resided, and on his attending in December without his wife it was necessary, in order to avoid delay, that the sale should be carried out in the form actually adopted by a deed to Wilson and then through an intermediary to Mrs. Wilson. Looking alone at the whole evidence relating to the circumstances up to the time of the execution of the deed, I find that this evidence is not sufficient to establish that the deed was not an absolute deed, but a mortgage. And the further question is whether the evidence relating to the action, conduct, or declarations of the parties, and especially of Mrs. Wilson, subsequent to the deed, either alone or taken in connection with the other evidence in the case, is sufficientto establish that the deed was originally intended as a mortgage. The intention of the parties at the time of the execution is the vital question, and the evidence of subsequent transactions is generally important only as authorizing inferences in relation to the intention at the time. Frink v. Adams, 36 N. J. Eq. 485 (Van Fleet, V. C; 1883), affirmed on appeal 38 N. J. Eq. 287. But, in relation to their subsequent conduct, the relation of the parties has also an important bearing; for, even if the original transaction was only for securing the wife's obligation on the note, as the bill alleges, the subsequent investment in the property of the wife's money, with the consent and acquiescence of the husband, while the title stood in her name, might, under the usual presumption as to husband and wife, be considered as indicating a gift on the husband's part of his entire interest in the property.

The evidence relating to the dealings of the parties, Mr. and Mrs. Wilson, with the hotel property subsequent to the delivery of the deed, including the evidence offered as to their declarations in regard to it, is substantially as follows: At the time of the transfer of title the hotel was under lease to a Mrs. Pemberton, for a term expiring in 1887, at an annual rental of $1,600, payable March 1st, June 1st, and August 1st, as appears by an entry in Mrs. Wilson's diary under date of December 16, 1884. This tenant continued the occupation until the termination of her lease; her payments of rent, when made in cash, being, as Mr. Wilson says, by checks payable to the order of Mrs. Wilson, and indorsed by her and deposited to the credit of her bank account with the Long Branch Banking Company. For the rent of the year 1885 the tenant, as appears by Mrs. Wilson's entry in her diary of April 18, 1885, was allowed on account of the rent of the year $384.23 for ranges and gas fixtures put in the property. On August 12, 1885, a payment of $500 was made on account of the $6,000 note. Mrs. Wilson appears to have paid the interest charges on the whole amount ($15,000) carried on mortgage, besides insurance and taxes. These annual charges amounted to about $1,200 in 1885. In 1880 payments were also made on the $6,000 note; three payments of $500 each being credited on the dates May 6th, August 4th, and August 20th. Three payments of $500 each were also made in 1887, on April 12th, July 7th, and August 8th, and in 1888, on April 11th, May 8th, and August 8th, leaving due on the note $1,000, which was paid on May 15, 1889. Mr. Wilson says that these payments were all made out of the rents of the hotel property, except the last payment of $1,000, which was paid in part out of the rents of other property owned by Mrs. Wilson. As to some of the payments, those of May 6, 1886, the three payments in 1887, and the payments of April 11 and May 8, 1888, his statement as to the source of the money is corroborated by the bank account of Mrs. Wilson, which shows deposits to her credit on or shortly after the dates when the rent came due, and charges against her account for substantially these amounts. The bank accounts, however, seem to have been the general bank accounts of Mrs. Wilson, and the rents deposited (if these were the rents) comprised only about one-half of the deposits. The deposits for the year 1887, for instance (which is the only year for which complete accounts have been produced), show a total credit of $2,964, and the account of 1888, up to October 4th, of about $3,000. Mrs. Wilson drew generally against this account, especially for the payment of the semiannual interest due on the Patterson mortgages ($270), which, together with the other charges on the property, including repairs, were paid from this account. Mr. Wilson's statement, therefore, as to the note being paid from the rents can, in view of these accounts, only to be taken to mean that amounts equivalent to the rent were annually paid on the note from the bank accounts in which the rents were deposited. These payments of $1,500 yearly from the rents, if specially applied on the note, left Mrs. Wilson to make up from other funds the entire annual charges on the property; and, while these payments on the note may show that Mrs. Wilson was desirous of paying off this liability as soon as possible from all her resources, including the rents of the hotel, they do not show that the payments were so made from the rents of the hotel as to justify the inference that these were specially applied to the payment of the note, in pursuance of any prior agreement that the transfer of title was made only to secure against liability on the note. Manifestly the net rents only (after deducting ail charges) would be applicable under such an agreement, and the entire absence of anything like an account against this property or against Mr. Wilson for payments on account of it, in connection with this confusion of the rents and the note payments with all her other receipts and payments in her bank account, indicates to my mind that as between Mr. and Mrs. Wilson the rents from this property belonged to her as much as the rents of her other property. No bank accounts after 1888 of either Mr. or Mrs. Wilson have been produced. In reference to the Patterson mortgages, it appears by a receipt on the bond for $8,000 that on October 22d, 1889, Mrs. Wilson paid $2,500 of the principal of this mortgage. On October 21, 1890, Mrs. Wilson, as appears by a separate receipt, made another payment of $2,000, reducing it to $4,500; the source of the money not appearing. But in 1891 Mrs. Wilson received $4,500 from the payment of a mortgage on her Cincinnati property, and this money was used, as Mr. Wilson says, to pay the balance due on the Patterson mortgage, and on February6, 1801, the last payment of $1,070.50 was made on this mortgage, and it was canceled of record. The large payments in 1889 and 1890 could not have been made from the clear net rents of the hotel property, and must have been made largely from Mrs. Wilson's other resources. No account as between Mr. and Mrs. Wilson was ever kept as to any of these payments, and the fact that the mortgages were, with Mr. Wilson's knowledge, paid off mainly by money not derived from the property, and were canceled of record, goes very far, in my judgment, to establish the fact that, whatever may have been the original understanding, the property was then considered to belong absolutely to Mrs. Wilson, and that she did not hold it as mortgagee to secure merely her liability on the note or debts from her husband. The subsequent dealing between husband and wife, bearing upon the title to the property, point to the same conclusion. In December, 1895, Mrs. Wilson sold for $450 a small strip of the property, for which she received the consideration money; her husband joining in the deed. The unincumbered title being in Mrs. Wilson from 1891, she and her husband In June, 1898, executed a mortgage on the property for a loan of $2,500, which was used by Mrs. Wilson for her own purposes. On November 11, 1903, another mortgage was executed by them for $5,000, to take up the previous mortgage, and an additional loan of $2,500, used also by Mrs. Wilson for her own purposes, part of it for the living expenses of herself and husband. This mortgage is still a lien on the property, and no subsequent charges affecting the title were made up to Mrs. Wilson's death, December 29, 1903.

Outside of the testimony of Mr. Wilson himself, the principal evidence of communications after the transfer between the husband and wife, relating to the ownership of the property, are letters of complainant written to his wife in October, 1897. At that time Mrs. Wilson was at the house of her sister Mrs. Smith, in Asbury Park, having gone there in consequence of some quarrel or misunderstanding with her husband. Mr. Smith, the brother-in-law, says that one cause of the difference between them was Wilson's refusal to give Mrs. Wilson the deed for the property now in question. Wilson came to Smith's house to see his wife, and in the interview between them Mrs. Wilson accused her husband of having the deed and of always claiming the hotel wasn't hers, to which Wilson said: "I don't claim the house. I have got no Interest in the house. It is your property, and it all belongs to you." Wilson wrote several letters to his wife while she was at Smith's house, urging her to return to their home, and in these letters her ownership of this property, and not his, is also asserted by Wilson, apparently for the purpose of reassuring her against his claims. One of October 8th is especially important as giving a statement of a bargain in reference to the Laurel House. He asks her to come home and talk things over, and says that it is "annoying for Mrs. Smith to tell you you had no property. It is all yours, and a very fine property. You said, after the Laurel House was out of debt, you were going to let me have so much a month; but, after being here so many years, I have nothing yet." In another letter he tells her that her property is increasing, and after stating he had heard Mrs. Smith had said $2,000 or $3,000 were gone, and that he had bought lots with It, he says this was untrue, that the property had been well managed, that he had bought nothing with it except the Allenhurst property, which was in her name, and adds: "The property is all yours, and we have made several thousand. Come home and enjoy it * * * Mrs. Smith knows she tells what is not so, when she tells you you have no property. No one believes her, and any goose knows better. All yours and all straight." These letters, written at the time when the question seems to have been directly raised between the husband and wife as to the ownership of this property and his alleged claims on it, cannot be reconciled with the view that both the parties intended the title to be taken only as security for debts or obligations, and it must require very clear and decisive evidence to the contrary to outweigh these admissions of the complainant, advisedly made, and made for the purpose of procuring her return. Had complainant's present claim been then set up, Mrs. Wilson would have had the opportunity to defend her ownership, and the husband's direct and unreserved admission of his wife's ownership at that time has an important bearing on his right to contest it after his wife's death and at this lapse of time. Mrs. Wilson returned to her home shortly after these letters were written, and lived with her husband up to the time of her death. After her return Mr. Wilson seems to have again taken charge of the hotel, leasing it, and collecting the rents, and attending to the repairs and management of the property. One of the tenants, Mrs. Kemp, paid the rents by checks to his order, and these were indorsed by him and deposited, as he says, to Mrs. Wilson's account in the bank where Mrs. Wilson kept her account. In all of the other tenancies the checks were made either to Mrs. Wilson alone or jointly to both, and all checks went ultimately to Mrs. Wilson's credit. Mr. Wilson does not appear to have kept any separate bank account after the transfer of title, nor to have had resources of his own. It appears, also, that the expenses for the support of the family were paid from Mrs. Wilson's income, including that received from the hotel, and I think Mr. Wilson's management of the hotel, under these circumstances, is to be considered rather as a management of his wife's propertythan the continued possession and control of the property by a mortgagor, as is now claimed on his behalf.

In addition to the evidence above referred to, complainant relies on oral declarations proved to have been made by Mrs. Wilson subsequent to 1898, when she returned home. In some courts it is held that evidence of subsequent oral admissions by a grantee that an absolute deed was intended as a mortgage is not sufficient without corroborating circumstances to establish this fact. 1 Jones, Mortg. (5th Ed.) p. 241, § 335, and cases cited note 4. And certainly evidence of this character, in order to divest the title to lands and to overcome the effect of the previous conduct of the parties and written admissions of the husband, must be scrutinized with great caution after the death of Mrs. Wilson, and be very clear and convincing. In none of these conversations does it appear clearly that the attention of the wife was distinctly drawn to, or fixed on, the question whether this deed was only a mortgage or whether she had the right to hold the title to the property, if she chose to do so, and many of the declarations are such as may fairly be considered expressions indicating nothing further than that this hotel was an enterprise of Mr. Wilson's, and not of her own, and that she had taken hold of it to save the money he had put in it, and that Wilson was managing the hotel. Harry Looker, a nephew by marriage of Mr. Wilson, says that in 1898, at a visit he made to them in Asbury Park, Mr. Wilson was going over to the hotel, and Mrs. Wilson asked him if he did not wish to go with him and see the hotel. She said: "Uncle Fred takes a great interest in his hotel." This reference to the hotel as Fred's hotel would be just as applicable to a hotel he was thus managing as to one he owned.

Up to the time of Boyce's tenancy the hotel was unfurnished. He occupied it for eight years after Mrs. Pemberton, not having been put in by Wilson, as he says in his letters. After Boyce's dispossession by Mrs. Wilson herself for nonpayment of rent the hotel was afterwards furnished (apparently at Mrs. Wilson's expense), and on the subsequent purchase of furniture in New York Mrs. Wilson, in this witness' presence, spoke of the furniture her husband put in "his hotel," and that he could do as he pleased about it. At a later conversation (in 1902) Mrs. Wilson, talking to witness about a new house she expected to build and the different pieces of property, mentioned the hotel, and said she wished she had never gone into it; she only did it to help Fred out. She said he found he could not meet his payments, and she had taken it as security to help him out But on cross-examination the witness says that in this conversation she put it in this way: "She thought she could put her money to a better advantage than she put it there. She told me the property was in her name, that she had taken a deed as security for Mr. Wilson. She would rather have invested the money. She could have made more money in other property." This conversation is entirely consistent with the view that Mrs. Wilson owned the property, and that the money made by the investment was hers. Mrs. Looker, the witness' wife, present at this conversation in 1902, says that Mrs. Wilson, speaking of the hotel, said she had bother enough without that; that "that was Uncle Fred's" and she only took it to secure it for him; that she always spoke of it as "your uncle's hotel." Mrs. Vincent, a niece of Mr. Wilson, says that in 1899 she visited Mr. and Mrs. Wilson at Asbury Park, and in a talk with Mrs. Wilson about the property she said she "had advanced Uncle Fred this security to save his hotel at the time he needed it, and had taken the hotel as security. I asked her if she had had her money back, and she said 'Yes,' and I said, 'From rents of the hotel?' and she said, 'Yes.' She said she took the title as security for the money she advanced, or the security she put up. She told me it was $6,000."

The evidence which is most strongly relied on in complainant's favor is that of a Mr. Sexton, a disinterested witness. He swears to a reference to the hotel by Mrs. Wilson in a general conversation with him, in which she said that what money she had put in the hotel she put in for Mr. Wilson's benefit, as she wanted him to have something in his old age, and to a special conversation with her in February, 1902, at the funeral of Mr. Wilson's brother, which witness had charge of as undertaker. Mrs. Wilson asked the witness how much Mr. Wilson owed him. He told her, and she said that would be all right, that she was going to help him. "I said: 'What about the hotel down there? Does Mr. Wilson own that, or do you own it?' She said: 'That is Mr. Wilson's. What money I put in that I put in for his benefit.' That what she had put in the hotel, she put in to help Mr. Wilson out, as she wanted him to have something in his old age." Mrs. Kemp, a tenant of the property from 1898 to 1902, who rented the property of Mr. Wilson, under a lease signed by Mrs. Wilson, and paid him the rents by checks to his order, says that "at one time, when, Mr. Wilson not being inclined to make some repairs, I supposed Mrs. Wilson owned the property, she said: 'I have nothing to do with it. I merely took it to save the property.' And I went without the repairs." On a leading question put to her, "Did she say who owned it?" this witness answered, "Oh, yes; she always said Mr. Wilson." Mrs. Regan, who worked for Mrs. Wilson for 12 years from 1890, and was at her house three or four times a week, says that Mrs. Wilson told her a number of times that she paid off the debts on the hotel to save it for Mr. Wilson, and took the hotel as security for her money.

On the assumption that these conversations give in all respects Mrs. Wilson's exactwords, and giving them all fair effect, they are not sufficient, in my judgment, to outweigh the evidence as to the nature of the original transaction which is supplied by the documents themselves, and the conduct and admissions of the parties under them, up to at least the year 1898. Mrs. Wilson's account or explanation of any of them cannot now be heard, and bearing this in mind, in considering the weight to be given to them on the question now to be solved, viz., the agreement at the time of the transfer of title or at the time of Mrs. Wilson's subsequent investment of her money in the property (1) by the payment and cancellation of the Patterson mortgages, and otherwise, I think that, outside of the conversations sworn to by Mr. Sexton and Mrs. Kemp, the scope of statements cannot clearly be held to go further than to give what was then (in 1898 or later) Mrs. Wilson's statement as to her motive in taking the property and an explanation of her Investment. The direct statement made to Mr. Sexton that "the property is Mr. Wilson's; what money I have put in it, I have put in for his benefit"—was a statement, not that she had lent money to Wilson which he was to pay back or account for, but that she had put her money in the hotel to help him out, as she wanted him to have something in his old age, and imports rather a gift to Wilson of the money she put in. This may well have, then, been her intention as to the ultimate disposition of the property, but, so long as she held the title in her own name, this gift was still unexecuted and under her own control, and in none of these conversations is there any sufficiently clear indication on her part that the title to the property was not then her own, or that she had no right as between herself and Wilson to hold the title as her own. These conversations all occurred after the reconciliation in 1897, after a separation, during which she was reassured about her title to this very property, and her subsequent declarations as to her husband having this property or the benefit of it are very probably due to a subsequent change in her disposition toward her husband, while living amicably with him, and having the benefit of his management of the property. And, while they may possibly be taken to indicate her intentions in reference to the property, they are not sufficient to divest her title after her death.

Upon the whole evidence I conclude that complainant has failed to make out a case for relief; and the bill must be dismissed.