BIRD, V. C.
On bill to foreclose.
John H. Backes, for complainant.
W. D. Holt and James Buchanan, for defendants.
BIRD, V. C. This bill is filed by the administratrix of Mrs. Smith to foreclose a mortgage which, it is said, was executed and delivered to Mrs. Smith by Mary E. Groves, her daughter, to secure $1,350, so much money advanced by Mr. Smith, the husband of the one and the father of the other. The mortgagor was a married woman at the time of the execution of the mortgage, and, her husband not joining therein, an imperfection is manifest, which it is thought this court is capable of overcoming by declaring the alleged loan to be a lien on her separate estate, acting upon the supposition that the wife had the power of appointment, and did intend by her act so to appoint. The following authorities are relied upon as sustaining this view: Harrison v. Stewart, 18 N. J. Eq. 451; Wilson v. Brown, 13 N. J. Eq. 277; Leaycraft v. Hedden, 4 N. J. Eq. 546; Life Ins. Co. v. Marshall, 32 N". J. Eq. 103; Cutler v. Tuttle, 19 N. J. Eq. 560; Hulme v. Tenant, 1 Brown, Ch. 16; Armstrong v. Ross, 20 N. J. Eq. 116; Pentz v. Simonson, 13 N. J. Eq. 234; Pierson v. Lum, 25 N. J. Eq. 390; Murray v. Barlee, 3 Mylne & K. 209; Methodist Church v. Jaques, 3 Johns. Ch. 77; North American Coal Co. v. Dyett, 7 Paige, 14. Taking it for granted that the complainant has the correct view of these cases, (which I do pause to discuss,) I will inquire what facts or statements have been introduced, by way of evidence, to establish whether or not any foundation is laid for this equitable doctrine to rest upon.
In 1879, Mrs. Groves being desirous of buying a lot of land, her father, Mr. Smith, advanced to her $300 for that purpose. There is no satisfactory evidence of what passed between the parties, (the father and his daughter, except the payment of the money. There is no evidence that, at that time, it was regarded as a loan or as a gift by either. It does not appear that any note or memorandum was given or required. Mrs. Groves purchased a lot, and, in order to build a house thereon, in 1870, borrowed $1,000 of Mrs. F., and gave to her a mortgage on the lot. While this mortgage was in full force, and no part of the principal paid, Mrs. Groves, in December, 1871, executed a bond, and the mortgage now in suit, to her mother, Mrs. Smith, and delivered them to her. It was a year, and perhaps longer, after this that Mrs. Groves applied to her father to pay off the mortgage given to Mrs. F., which he did; $1,000 and some interest then being due. He paid the money directly to Mrs. F., and had the mortgage canceled of record, taking nothing but the canceled mortgage as proof of what he did.
The allegation now is in the bill that Mrs. Smith paid and advanced, not only the $300, but also the principal and interest of the mortgage, being $1,050, and that, to secure the same, Mrs. Groves gave her a bond and the mortgage now in suit. This allegation, so contradictory to all the testimony, the complainant desires to remove, by amending his bill so that the allegation shall be that the moneys were advanced by Mr. Smith, and that he ordered and directed the securities to be taken in the name of Mrs. Smith, and caused them to be delivered to her, making her a gift of them. Proceeding, then, with this more favorable and consistent allegation, many difficulties seem to be in the way of placing the case upon the foundation prepared by the counsel of complainant. When the mortgage was executed and delivered to Mrs. Smith, (if it was so delivered in December, 1871, as alleged,) not one dollar was given therefor. There is no evidence that Mr. Smith was present, or had any one present to represent him, or had the slightest knowledge of the transaction. There is no evidence that he had at any time requested the execution of such bond and mortgage, nor that he knew anything about them until a long time afterwards. It is by no means satisfactorily established that his attention was called to them when he paid off and canceled the bond and mortgage held by Mrs. F. It cannot be safely said that he had any knowledge of them until 1878, when, it is said, they were in his possession, kept by him in a tin box under lock and key, and such box deposited in his trunk. The attention is also arrested by the fact that it does not appear that Mrs. Smith was any party to the transaction, except to be the recipient of the bond and mortgage, or that she was in anywise consulted respecting it, or had any knowledge of it, until the bond and mortgage were delivered to her.
But if this mortgage was executed without any knowledge upon the part of Mr. or Mrs. Smith, and without any pecuniary consideration, how did it come to be executed? The reason therefor is plain. Both of the witnesses called by the complainant concur in saying that their brother-in-law, Mr. Groves, became dissipated, neglected work, and abused their sister, and that she executed this mortgage to protect the property from him. They say that she was fearful that he would prevail upon her to execute a mortgage upon the premises for his convenience or accommodation. How, then, these things being so, can this mortgage have life? Or how can the amount of money therein named be declared a lien upon the land by way of appointment? Mrs. Smith gave nothing for it herself. There is nothing to show that Mr. Smith accepted it as security, and made a gift thereof to Mrs. Smith. As has been already intimated, there is no thread of evidence suggesting that there mighthave been an understanding between Mr. Smith and his daughter, that he, having already advanced the $300, she should execute this mortgage to secure that amount, and also the $1,000, and that he would some time thereafter advance the $1,000. I am led to conclude that this mortgage is without vitality in the hands of the complainant, believing as I do, from the fullest declaration of the witnesses, that it was executed and delivered originally to protect the property therein described from a reckless and dissipated husband, and being unable to discover any proof that it was ever delivered or assigned for any other purpose either to Mr. or Mrs. Smith.
I ought to observe that, if Mrs. Smith ever held this mortgage as a valid lien on the lot in question, or as evidence of a just claim against her daughter, by the consent of Mr. Smith, then, it appearing that Mr. Smith had the undisputed possession of it before the death of Mrs. Smith, he may have come by it in a perfectly legitimate way, and for a good consideration; and all will agree that, he having the possession, the presumption (if there is any presumption in favor of any party) is that he was the lawful owner and holder. And, again, Mr. Smith surviving his wife, and still having the possession thereof for several years, it would not be straining the rule that the husband takes as next of kin, to hold that he supposed he was so entitled, having the possession, without the formalities of administration.
I think the bill ought to be dismissed, with costs, and will so advise.