Chase v. Caryl

• Decision Date: 08 April 1895
• Citation: 31 A. 1024,57 N.J.L. 545
• Parties: CHASE v. CARYL.
• Court: New Jersey Supreme Court

31 A. 1024

57 N.J.L. 545

CHASE

v. CARYL.

Supreme Court of New Jersey.

April 8, 1895.

(Syllabus by the Court.)

Action by Hattie C. Chase against Julius H. Caryl, executor of Nelson Chase, deceased. Verdict for defendant. On rule to show cause why new trial should not be granted. Rule discharged.

Argued February term, 1894, before BEASLEY, C. J., and MAGIE, GARRISON, and LIPPINCOTT, JJ.

Gilbert Collins, for plaintiff.

Edward Q. Keasbey, for defendant.

LIPPINCOTT, J. This suit was on a bond, in the penal sum of $20,000, given by Nelson H. Chase to William Dunning, dated December 1, 1877, conditioned for the payment of the sum of $10,000, in six months from the date thereof, with interest thereon from date. The bond was assigned by William Duuning to his daughter, Hattie E. Chase, on January 9, 1891, and this suit was commenced by her the next day. The assignment contained a covenant that the whole of the principal sum of $10,000 was due, with interest thereon from the date of the bond, and this was the amount claimed in the bill of particulars annexed to the declaration. The defendant pleaded non est factum and payment. The suit was by the plaintiff against the executors of her deceased husband, Nelson H. Chase; and the defense was that the bond, with an accompanying mortgage, of the same date, on real estate in the city of New York, had been executed by Nelson H. Chase to Dunning as collateral security to indemnify Dunning against liability for his Indorsement of two certain promissory notes, of $2,000 each, given by Nelson H. Chase, and that such notes had, since the execution of the bond and mortgage, been paid. It was contended on the trial that both the bond ana mortgage were given for this purpose; that the notes had been paid, satisfied, and surrendered, and that the mortgage had been canceled; and that the bond had thus become satisfied. The evidence reveals the undisputed fact that the mortgage which, it is contended, accompanied the bond, has been satisfied, canceled, and discharged of record. It is also beyond dispute, upon the facts proved as well as conceded in the case, that the promissory notes given by Chase and others, and upon which Dunning was an indorser, and to secure whose indorsement, it is contended, the mortgage was executed, have been paid and satisfied. There is no necessity for a review of the evidence upon these points, for these conclusions are undisputed. The plaintiff distinctly contends that the bond and accompanying mortgage, if there existed any accompanying mortgage, were not executed as such collateral security, but, even if so, such security was only a part of the consideration thereof; that there wert other considerations, valuable and sufficient, upon which to base a recovery for the difference between the amount of the promissory notes and the amount of the bond; and that the cancellation and discharge of the mortgage upon the notes being paid cannot affect her right of recovery of this difference. Besides, the plaintiff denies that the mortgage accompanied the bond, and claims that the bond was for a consideration, entitling her to recovery thereon. Thus the Issues tried between the parties to the bond were clearly defined. Upon these issues variant and disputed evidence was submitted to the jury by the trial judge. There was evidence, both positive and circumstantial, bearing upon these disputed contentions. The verdict of the jury was for the defendant.

It would appear to be useless to review the evidence. An examination of it clearly sustains, upon legal principles, the verdict of the jury upon the questions of fact submitted. Aside from the alleged errors in the admission of evidence produced on the part of the defendant, there can arise no complaint as to the instructions to the jury contained in the charge of the court. The question whether any mortgage accompanied the bond was clearly and distinctly left to the jury for its determination. So, also, was the question of the consideration of the bond, and the purpose for which the bond and mortgage, or either of them, were executed. So, too, was the question, if it was found that the mortgage accompanied the bond, whether the consideration was other than to secure Dunning against liability upon his indorsements. Every phase of fact upon which a liability of the defendant might arise was left to the determination of the jury, without any indication on the part of the judge as to the direction in which their finding should be made. Upon the instructions the jury were left to determine the consideration of the bond upon which suit was brought, and to find a verdict either for the plaintiff or for the defendant. No error of law whatever has been perceived in these instructions. It will be noted that no interest whatever was ever paid on this bond, or any sum ever paid on account of the principal of this bond, if the contention of the plaintiff be true, and suit was not commenced thereon until about 13 years after it was due, and not till after Chase, the obligor, was dead. The trial Justice notes these facts, in his charge to the jury, as facts, along with the other evidence, for the jury to consider in determining whether the bond, at the time the suit was commenced, represented a real obligation. This is alleged as error. It was entirely proper for him to submit to the jury the force of these facts, along with the other evidence in the case. These facts did not debar recovery, and the jury were so Instructed; but the claim was a stale one, being prosecuted after an ample opportunity had been afforded to establish it during the lifetime of the obligor. The main reliance of the plaintiff to establish liability was the evidence of Mr. Dunning, who had, undoubtedly, the day before suit was brought, assigned this bond to his daughter, the plaintiff, in order that he might be a competent witness. And, besides, the assignment contained a covenant that the whole amount—both principal and interest—was due thereon, and to that extent he was an Interested witness; and it certainly was no error for the court to so instruct the jury, leaving, as was done, the weight, force, and effect of his evidence, and the facts noted, to the uninfluenced consideration of the jury. I cannot conclude that the charge, in this or in any other respect, brought to the attention of this court, misled the jury. Comment of a trial judge upon the facts, in order to Illustrate and enforce the application of proper principles of law, if the facts are left to the jury to determine, and the comment or statement of facts is not such as to mislead the jury, does not constitute legal error. Therefore, the conclusion reached is that the trial court correctly instructed the jury.

The bond and the assignment thereof were produced by the plaintiff, and proved, and then the plaintiff rested. In order that the defendant make out the defense claimed, it was deemed necessary, at the outset, to prove the existence of the mortgage claimed to have accompanied the bond. The defendant proved, without objection, the statute of the state of New York in relation to the recording of conveyances of real estate, and mortgages thereon. 1 Rev. St. N. Y. c. 3, marg. p. 756,—an act entitled "Of the proof and recording of conveyances of real estate and the cancellation of mortgages." (Jan. 1, 1830.) This statute provides for the recording of conveyances of real estate, and mortgages thereon, in books in the offices of the county clerks in the several counties of the state (in New York county, the register's office), after being duly acknowledged by the parties executing them, in accordance with the statutes. The statute provides that the term "conveyances," as used in the statute, shall be construed to embrace every instrument in writing by which any estate or Interest in real estate is created, aliened, mortgaged, or assigned, or by which the title to any real estate may be affected, in law or equity, except last wills and testaments, leases for a term not exceeding three years, and executory contracts for the sale or purchase of land, and then provides, that "every conveyance acknowledged or proved, in the manner above prescribed, by any of the officers before named, may be read in evidence without further proof thereof, and shall be entitled to be recorded, * * *" and that "the record of a conveyance duly recorded, or a transcript thereof duly certified, may also be read in evidence with like force and effect as the original conveyance." 1 Rev. St. p. 759. The first section of article 4 of the constitution of the United States provides that "full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state, and congress may by general laws prescribe the manner in which such acts and proceedings shall be proved, and the effect thereof." Under the act of congress of May 20, 1790, such provision, in accordance with the constitution, was made, prescribing the manner in which such acts and proceedings should be proved respecting the records of the courts of the several states, but the act goes no further. Rev. St. U. S. par. 906. The act of March 27, 1804, goes further, and prescribes the mode of proof of records that are not the records of any court. It, in substance, declares that all records and exemplifications of books which may be kept in any public office in any state or territory of the United States, or of any county subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in any court or office in any other state or territory, or in any such county, by the attestation of the keeper of said records or books, and the seal of his office annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county, parish, or district in which said office may be kept, or of the governor, or certain other officers, and that the...