Blue v. Everett

• Decision Date: 17 March 1897
• Citation: 36 A. 960,55 N.J.E. 329
• Parties: BLUE v. EVERETT et ux.
• Court: New Jersey Court of Chancery

36 A. 960

55 N.J.E. 329

BLUE

v. EVERETT et ux.

Court of Chancery of New Jersey.

March 17, 1897.

Bill by Jacob Blue against John B. Everett and wife to foreclose a mortgage. Heard on bill, answer, replication, and proofs. Bill dismissed.

Gallagher & Richards and H. E. Richards, for complainant.

Blake & Howe and Edward M. Colie, for defendants.

EMERY, V. C. This is a foreclosure bill, and is filed to foreclose a mortgage for $1,500, on lands in Newark, given June 19, 1872, payable one year after date, and on which the whole principal sum, with interest from August 9, 1875, is by the bill claimed to be due. The mortgage was originally given by Ira W. Conselyea and wife to one Owen Kane, and Kane, on May 12, 1873, assigned it to the complainant, Blue, who has owned it since that time. The bill to foreclose was filed more than 20 years later, and on October 25, 1894, the only defendants to the bill being John B. Everett (to whom the property was conveyed on May 16, 1894) and his wife, Conselyea, the original owner, conveyed the property to Richard M. Barnett, by deed dated June 20, 1872, and it is charged in the bill that the conveyance was declared to be subject to the mortgage; but this is not admitted by the owner, and the deed has not been put in evidence. Barnett and wife, on January 16, 1874, conveyed to William H. Frazee, by a deed expressly declared to be subject to the mortgage in question, but not assuming its payment. Frazee continued to be the owner from this date for over 20 years, and until May 16, 1874, when he and his wife conveyed the property to the defendant John B. Everett, by a general warranty deed, referring to Frazee's deed, but not referring to the mortgage. The defense set up by the answer is that if the bond and mortgage was in fact given, as to which complainant is put to his proof, there is nothing due on it; and the defense is further specially set up that since January 16, 1874, when the property was conveyed to Frazee, no payments of either principal or interest have been made on the mortgage, nor have any acknowledgments of it been made by either Frazee or Everett, nor during all that time was any request or demand made of either Frazee or Everett for payment of either principal or interest The defendants therefore claim the benefit of the statute of limitations as a bar to the suit.

The complainant, at the hearing, sufficiently proved the execution of the bond and mortgage, and also the payment in December, 1872, of six months' interest on the bond ($52.50), up to December 19, 1872. This payment was made by Barnett, who was then the owner of the property, to Kane, then still the holder of the mortgage, and was indorsed on the bond by Kane; but the indorsement of this payment is by mistake made to December 19, 1873, instead of 1872. There are three other indorsements of interest on the bond, each for $52.50, and dated, respectively, June 19, 1873, December 19, 1873, and August 9, 1875, the two latter being signed by the complainant The complainant, although called as a witness, offers no proof in relation to the payments indorsed as of June 19, 1873, or December 19, 1873, or as to the circumstances of these indorsements; and Barnett who was then the owner of the property, swears that he does not recollect paying interest on the mortgage more than once, and says that he has, no recollection at all of ever having seen Blue until he saw him at the hearing, and does not recognize him. In this state of the proof, these indorsements of June 19, 1873, and December 19, 1873, on the bond, written apparently by the complainant, cannot be taken as proofs of payment of interest, and may be laid out of the case, except in connection with their effect, as indorsements by the complainant, and in connection with the evidence given by him in relation to the indorsement of $52.50, as interest received August 9, 1875. This payment is within 20 years of the date of filing the bill, and while Frazee was the owner, and complainant swears that it was received by him from Frazee. His account is most detailed and circumstantial, and is as follows: He then lived at Rockaway, N. J. Drove down from that place to Newark. Saw Barnett at his place of business in Newark, and applied to him for the interest. Barnett told him he had sold the property to Frazee, and directed complainant where to find Frazee, at a place in Newark, which was up Market street, and "over the hill." The name of the street complainant says he has forgotten. He went to this place to which Barnett had directed him, and found Frazee there, keeping a grocery store. Complainant told Frazee that he (complainant) had the mortgage on the lot Frazee had bought, and asked Frazee whether he was aware of it, to which the latter replied that he was, and that he was willing to pay it as fast as he could. Complainant asked Frazee for his interest, and Frazee, being hard up for money, asked him to take groceries for it, which complainant consented to do; and he then took groceries—teas, coffee, etc.—to the amount of $52.50. This was six months' interest, and if the previous indorsements of June and December, 1873, represent genuine payments up to December 19, 1873, the whole amount then due was 18 months' interest to June, 1875,—$157.50. Complainant says that Frazee promised to pay him more interest soon. After getting this payment of $52.50, Blue further swears that, at Frazee's invitation, he took dinner with Frazee and his family, in his dwelling, which was in the same building with the store, and there saw Frazee's family, whom he remembers distinctly. There were, he says, two daughters,— one a very small girl, like a dwarf; another larger girl, weighing 150 or 160. Nothing is said about Frazee's wife. After dinner, complainant loaded his goods, and went home. In reference to the property, Frazee told complainant that he had taken in a deal, and wanted to sell it, and wished complainant to wait until he got a chance to sell it, when he would give complainant his money, and complainant then told him he must have his interest. About six months after this interview, as complainant says, he went again to Frazee for the interest, and then Frazee told him that he had sold the property to a man in New York state, whose name and address Frazee then gave him. Complainant says that he wrote this man soon after; that he got no answer; that, after two or three months, he wrote again, with the same result; and that in April, 1877, he moved from Rockaway to Nebraska, and, after reaching there, wrote once more, but heard nothing. He says that on this last occasion he still had the address on a memorandum, but it has since been lost or mislaid, and complainant now says that he does not recollect either the name or the address. With the exception of these letters, complainant does not claim to have made any demand or request on anybody for either principal or interest on the mortgages, since the application to Frazee, which he says he made about six months after August, 1875. When complainant left New Jersey, he had but little property beyond this mortgage; and his pecuniary condition since April, 1877, has been such that the possession of this amount of money was a matter of great importance. It is doubtful from the evidence whether, at any time during this interval, he had in Nebraska as much money as was represented by this bond. His explanation of the failure to foreclose the mortgage or make any further demand of either principal or interest is that, before going West, he spoke to a lawyer about it, Mr. Jesse Cutler, of Morristown, and the latter told him that "a mortgage never dies." He therefore thought, he says, that it would never get outlawed. Upon the evidence produced by defendant, it appeared that this entire account of the payment of interest of August, 1875, by Frazee, the owner of the premises, was untrue. Frazee is a carpenter, and has been one for 35 years, and never kept a grocery store in Newark or elsewhere. His family consists of himself and wife, and he never had any daughter. In August, 1875, he lived in Newark, but not "over the hill" up Market street, but down in the lower part of the city, across the railroad, being in the opposite quarter. He never saw Blue until the day before the hearing, when Blue came out to his house, in Clinton township. Mrs. Frazee, his wife, corroborates this statement, and also says that Blue never dined with them anywhere; that she never saw him until a week before the hearing, when he came out. Barnett also swears that Blue's statement that he directed him to Mr. Frazee's residence on the hill, and sent him there to get the interest, is not true, and that, so far as he recollects, he never saw Blue at all until the hearing. After Frazee gave his evidence in Blue's hearing, the latter was recalled to the stand, and, being asked whether he then recognized the witness Frazee as the man he called on in August, 1875, says: "i couldn't say he was, it is so long ago. I wouldn't say positively that he was the man. I couldn't say." Nothing is offered in rebuttal of defendant's evidence, or by way of corroborating complainant, whose general reputation for truth is also directly attacked by witnesses who knew his reputation in his neighborhood, both in Orange, New Jersey, where he lived before going to Rockaway, and in Nebraska.

Upon the whole evidence, there is no doubt, I think, that no payment of interest on this mortgage was made in August, 1875, by Frazee, the owner, or any one acting for him. Nor do I think that, on this evidence, there can be any other conclusion than that the indorsements of June, 1873, and December, 1873, must be considered as indorsements made by the complainant without actual payment; so that the last interest on the mortgage was paid, therefore, in December, 1872, nearly 22 years before the filing of the bill. And it must be found also, I think, that the complainant's evidence as...