Bruen v. Spannhake

• Decision Date: 08 April 1935
• Citation: 178 A. 73
• Parties: BRUEN v. SPANNHAKE et al.
• Court: New Jersey Court of Chancery

178 A. 73

BRUEN

v. SPANNHAKE et al.

Court of Chancery of New Jersey.

April 8, 1935.

Syllabus by the Court.

1. The test laid down for ascertaining what is a "transaction with" the deceased within the intendment of section 4 of the Evidence Act (2 Comp. St. 1910, p. 2216 et seq.) is "to inquire whether, in case the witness testified falsely, the deceased, if living, could contradict it of his own knowledge."

2. Letters of decedent mortgagee in response to demands of mortgagor for release of lands under a covenant set forth in the mortgage admitted in evidence.

3. Where the mortgagee's conduct of delay in giving releases of part of the mortgaged premises, under a covenant in the mortgage, unjustly prevents the mortgagor from exercising his expressed privilege under the covenant, his representative cannot with good grace complain of the defendant's laches in demanding such releases.

Action by Norman J. Bruen, executor of the estate of James de Hart Bruen, deceased, against Elizabeth Spannhake and others, wherein defendants filed counterclaim.

Order in accordance with opinion.

George M. Shipman, Jr., of Belvidere, for complainant.

Gross & Gross, of Jersey City, for defendants.

EGAN, Vice Chancellor.

The complainant seeks to foreclose a mortgage covering property in the town of Irvington, Essex county, N. J. The mortgage is dated November 14, 1907, and was executed by Leon S. Moisseiff, Otto L. Spannhake, Edward Mishkind, and Morris Levin to Anna M. Bruen. At the time of its execution, the amount of the mortgage was $15,500. It, subsequently, on May 16, 1917, was assigned to James de Hart Bruen who held it until his death on June 23, 1932. This suit is brought by his son, as executor of his last will and testament. Otto L. Spannhake acquired the title; he conveyed it, and his wife, Elizabeth, obtained it; she conveyed it to their son, Walter O. Spannhake, the present owner.

The amount due on the mortgage is $13,975, with interest due thereon from December 15, 1932. The taxes are in arrears from the year 1932, and amount to approximately $10,000. The property was sold for unpaid taxes for the year 1932.

The mortgage contains a covenant whereby the mortgagee agrees to release any part of the mortgaged premises whenever requested so to do by the mortgagors, their heirs and assigns, upon receipt of a sum of money that bears the same proportion to the sum of $3,000 as the area of the land sought to be released bears to one acre. By virtue of this lastmentioned covenant the defendant Otto L. Spannhake, during the lifetime of the said James de Hart Bruen, requested releases of parts of the mortgaged premises for which he offered to pay the proportionate sum fixed by the covenant, but the said decedent either refused to release the requested portion, or he offered reasons for delaying releasing.

The testimony as to the demand, and the tender for the releases, was offered by the defendant through letters which he mailed to the decedent in his lifetime, and the replies of the decedent thereto. This testimony was objected to by counsel for the complainant who asserted that the reception of such evidence was in violation of section 4 of the Evidence Act (2 Comp. St. 1910, p. 2210 et seq.). The section referred to reads as follows: "In all civil actions any party thereto may be sworn and examined as witness, notwithstanding any party thereto may sue or be sued in a representative capacity; provided, this section shall not extend to permit 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."

Counsel for complainant cited several authorities in other states to sustain him, among them being Harte v. Reichenberg, 3 Neb. (Unof.) 820, 92 N. W. 987 (1902), part of the opinion therein reading as follows: "The contents of letters and telegrams, which pass between parties in the course of a business transaction, not otherwise identified than by a witness, who has a direct legal interest in the result of the suit, are not competent evidence as against the personal representative of a deceased person. * * * Of course, the sending and receipt of letters or telegrams to and from a deceased person are transactions with him."

He also cited McCorkendale v. McCorkendale, 111 Iowa, 314, 82 N. W. 754, 755 (1900), in which the court said: "The witness was a party to the suit, and could not testify as to personal transactions or communications between herself and Neil McCorkendale [deceased]. * * * That the letters she claimed to have received from him are within the prohibition of the statute is well settled, and it would seem hardly necessary to cite authorities, so plain is the language of the statute itself, which is broad enough to, and must be held to, embrace every communication, whether written or oral, direct or indirect."

He referred to Van Vechten v. Van Vechten, 65 Hun, 215, 20 N. Y. S. 140, 141 (1892), in which it was held: "In an action to declare a deed made by plaintiff's ancestor a mortgage, it appeared that defendant introduced in evidence various letters written by himself to deceased, touching the matters in issue. Defendant was administrator of deceased, and testified that he found the letters among deceased's papers, and that they were genuine. * * * It is error to admit such letters in evidence."

The principles laid down in these quoted decisions are supported in Smith v. Perry, 52 Neb. 738, 73 N. W. 282 (1897); Kroh v. Heins, 48 Neb. 691, 67 N. W. 771 (1896); Ramsey v. Ramsey, 174 Ga. 605, 163 S. E. 193 (1932).

The complainant further contended that the principal of the mortgage was in default; that the taxes are unpaid, and, therefore, the defendants are not entitled to the relief they demand in their counterclaim.

Counsel for the defendants urges that the correspondence does not come within the inhibition of section 4 of the Evidence Act because the deceased, if living, could not deny, or contradict, his own signed communications. To sustain his point he cites' the case of Rogers et al. v. McKenna et al., 96 N. J. Eq. 386, 124 A. 777, 778, where the suit was instituted to foreclose a mortgage made by the defendant to the complainants' executors' decedent. The defense in that case was that payment of the mortgage had been extended for a period of one year after the demand of payment; that no such demand had been made, nor had the period of one year expired. Vice Chancellor Foster in his opinion said: "Defendants have offered in evidence two letters, one from Mr. Rogers, under date of May 17, 1921, in which he called the attention of Mr. McKenna to the fact that the prevailing rate of interest is more than 5 per cent.—that even the government itself was paying 5 1/2— and asks if Mr. McKenna desired the mortgage to continue, and further asks if he would be willing to pay the additional one-half of 1 per cent. interest. Under date of May 21, 1921, Mr. McKenna replied to the letter, and stated that he would be willing to make the arrangement suggested. This is the only agreement in legal form that I find before me in any way changing or modifying the terms of the bond and mortgage. There is no other defense interposed. The mortgage is past due. I have overruled the offer of testimony from the defendant Mr. McKenna to show conversations and transactions with the decedent respecting an oral agreement alleged to have been made by Mr. Rogers with Mr. McKenna in April, 1021, in connection with this increase of interest, and which defendants claim will show they were to receive one year's notice or demand for the payment of the amount due on the bond and mortgage. This offer is overruled because it is in violation of the provisions of section 4 of the Evidence Act (2 Comp. St. 1910, p. 2218), and further because the parties by their correspondence in May, 1921, definitely reduced to writing whatever negotiations they orally had in the preceding April, if they had any.

The Vice Chancellor admitted the letters which passed between the decedent and the defendant; and it is observed that his decision, in part, is predicated upon the contents of those letters. The Court of Errors and Appeals sustained him.

In Benvenute v. Voorhees, 140 A. 677, 7 N. J. Misc. 580, it is stated as follows:

"This is a suit against an executor. The proofs in the district court showed that some one had seen the plaintiff loan to the defendant's testator money which he told others he had borrowed. The plaintiff testified that the money had not been repaid, and was still due and payable.

"The proofs further consisted of letters from the testator, in which he admitted that he owed the plaintiff money which would be repaid. These letters were necessary to take the case out of the six-year period of limitation.

"It seems to us that the action of the trial judge in giving judgment for the plaintiff did not offend either the Evidence Act (2 Comp. St. 1910, p. 2216 et seq.) or the Statute of Limitations (3 Comp. St. 1910, p. 3162).

"The judgment is affirmed."

In Bankers' Trust Co. v. Bank of Rockville Center Trust Co., 114 N. J. Eq. 391, 168 A. 733, 739, the court, among other things, said: "The bar of the statute extends to all transactions with, or statements by, the testator or intestate represented in the action, unless the representative offers himself as a witness on his own behalf, and testifies to a transaction with or statement by his testator or intestate. The design of the rule of evidence prescribed by this statute is to produce equality between the parties, by silencing the one who may, by his own mouth, be able...