Chase's Ex'r v. Chase

• Decision Date: 12 August 1892
• Citation: 50 N.J.E. 143,24 A. 914
• Parties: CHASE'S EX'R v. CHASE.
• Court: New Jersey Court of Chancery

24 A. 914

50 N.J.E. 143

CHASE'S EX'R

v. CHASE.

Court of Chancery of New Jersey.

Aug. 12, 1892.

(Syllabus by the Court.)

Bill in equity by the executor of Nelson Chase, deceased, against Hattie C. Chase. A preliminary injunction was granted, and defendant moves to dissolve the same. Granted.

Gilbert Collins, for the motion.

A. Q. Keasbey, opposed.

VAN FLEET, V. C. The principal object of this suit is to procure a decree directing the defendant to surrender a bond for cancellation. Preliminary to the main relief asked, an injunction was granted, on the filing of the bill, staying the further prosecution of an action at law which the defendant had brought to enforce the payment of the bond. The defendant now moves to dissolve the injunction, and the question which this motion raises is, is it necessary to the doing of full and complete justice that the forum of the litigation should be changed? The suit at law was commenced on the 10th day of January, 1891, and the bill in this case was not filed until the 5th day of September following, and not until after issue had been joined in the action at law and it had been noticed for trial. The bond which the complainant seeks to have surrendered was made by his testator, Nelson Chase, to William Dunning, on the 1st day of December, 1877, for $10,000, payable six months after date. Its payment was secured by a mortgage, executed by Chase and his wife, on Chase's undivided third of a tract of land situate on the corner of Broadway and Liberty street, in the city of New York. The bond and mortgage were given in part to protect Dunning against the liability he had incurred in indorsing two notes, of $2,600 each, for Chase. That this is the fact appears by the evidence of Dunning, given in a suit, instituted in the supreme court of New York, for the partition of the land situate on the corner of Broadway and Liberty street and other lands. In testifying in that suit, in April, 1881, he said that the mortgage above mentioned bad been made to secure him for the indorsement of two notes, of $2,600 each, and some other considerations which were private between Mr. Chase and himself, but, so far as he was concerned, he would be willing, when the notes were out of the way, to relinquish the mortgage. He subsequently said: "I cancel the mortgage when the notes are out of the way." The lands sought to be partitioned were subsequently sold and conveyed under an order of the court in which the partition suit was pending, and the proofs show—in fact it is undisputed—that the two notes indorsed by Dunning were paid out of Chase's share of the proceeds of sale. This is the complainant's case, except it is also shown, and undisputed, that Chase died in March, 1890; that the defendant is his widow and a daughter of William Dunning, the obligee named in the bond in suit; that the bond was assigned by Dunning to the defendant on the 9th day of January, 1891, and that she brought suit on it the next day. In addition to the facts just stated, the complainant alleges that the defendant was dissatisfied with the provision made for her by her husband in his will; that her father assigned the bond to her without consideration, and simply for the purpose of rendering himself competent as a witness in a suit which it was agreed she should institute on the bond; and that the assignment and suit are parts of a fraudulent scheme, concocted with a view of enabling her to get a larger part of her husband's estate than he intended she should have. The defendant denies that the payment of the bond assigned to her was secured by a mortgage, or that her bond is the bond which accompanied the mortgage made by Chase to Dunning on the 1st day of December, 1877. She says that, though her bond is identical in parties, date, amount, and time of payment with the bond recited in and accompanying the mortgage, it is nevertheless an entirely different and distinct instrument; or, stated in another form, her claim is that Chase gave two bonds on the same day to the same person, each for the same sum, and maturing at precisely the same time, the payment of one of which was secured by a mortgage, and the other not, and that she holds the one which was not secured. Her claim is supported by the evidence of her father. He was examined as a witness de bene esse in the action at law on the 24th of February, 1891, and again on the 16th of April ensuing, and died in the month of June folio wing. The defendant has annexed a copy of his deposition to her answer. It is undisputed that he testified, in giving his evidence in the action at law, that the payment of the bond in suit was not secured by a mortgage, nor did it accompany a mortgage; that it was given as evidence of the amount due to him for services rendered to the obligor extending over a period of 12 years; that he repeatedly requested payment; and that the obligor on each occasion promised to pay when he had funds, but that nothing had been paid. If his evidenceistrue, the bond is unquestionably a valid and existing obligation. His evidence shows, moreover, that the complainant's bill rests on an entirely false foundation. The foundation of the bill is that the bond in suit was secured by a mortgage, and has been paid out of the proceeds of the sale of the mortgaged premises; while the truth Is, if the evidence taken in the action at law is true, that the bond in suit was not secured by a mortgage, but is an entirely different instrument, and has not been paid either in whole or in part.

With the...