Conkling v. Weatherwax

• Decision Date: 18 April 1905
• Citation: 181 N.Y. 258,73 N.E. 1028
• Parties: CONKLING v. WEATHERWAX et al.
• Court: New York Court of Appeals Court of Appeals

181 N.Y. 258

73 N.E. 1028

CONKLING

v.WEATHERWAX et al.

Court of Appeals of New York.

April 18, 1905.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by Clarissa Weatherwax Conkling against John T. Weatherwax and others. From an order of the Appellate Division (86 N. Y. Supp. 139,90 App. Div. 585) reversing a judgment in favor of plaintiff and Emily A. Tompkins, defendant, they appeal. Affirmed.

This action was brought to establish and enforce a legacy as a lien upon real estate, and on the trial the following facts appeared: Henry Weatherwax, a resident of the county of Rensselaer, died on the 8th of May, 1868, leaving a will, which was dated March 14, 1863, and was admitted to probate on the 3d of September, 1868. He left a widow and three children-a son, Charles, now deceased, and two daughters, the plaintiff, Clarissa, and the defendant Emily. His property consisted mainly of the farm upon which he resided in his lifetime and the personal property connected therewith. By his will he directed Charles, his sole executor, in lieu of dower, to provide for his widow ‘out of the profits of’ his farm in various ways, and among others by paying her $150 per year during her widowhood and allowing her to occupy a part of the dwelling house on the premises. He gave the plaintiff a legacy of $1,000, ‘to be paid * * * two years after’ his decease, ‘out of my said farm by my executor,’ and to the defendant Emily a like amount, payable out of the farm by his executor 12 years after his decease. The latter bequest was reduced to $800 by a codicil dated January 16, 1866, and admitted to probate with the will. He gave his farm and the personal property to Charles after the payment of his debts, funeral expenses, and the said legacies, but provided that he should ‘not have the right to sell or dispose of’ the same ‘during the widowhood of his mother without’ her consent. These facts were alleged in the complaint and proved upon the trial. It was also alleged that the plaintiff had demanded payment of her legacy, and that the same was wholly unpaid. It was further proved that on the 1st of May, 1884, the said Charles gave a mortgage, collateral to his bond, in the usual form, upon the farm, to the defendant Hidley, to secure the sum of $3,000, and that no part of the principal thereof had been paid. Charles died July 5, 1900, leaving a will, by which he gave all his property to his son, the defendant John T. Weatherwax, to whom letters testamentary were duly issued on the 27th of August, 1900. The widow of Henry Weatherwax died on the 15th of February, 1892, having never remarried. This action was commenced on the 23d of August, 1900, and subsequently John T. Weatherwax, as executor, was brought in by a supplemental summons. The defendant Hidley, by her answer, denied that said legacies had not been paid, and denied that they were liens upon the real estate. As a separate defense she alleged that the legacies had been paid, and pleaded the lapse of the various periods of limitation prescribed by statute within which an action may be commenced. The trial judge found that the legacies had not been paid, and that the amount due thereon, including interest from the date when the widow died, was the sum of $1,661 to the plaintiff and $1,328.80 to the defendant Emily. He also found that each legacy was a lien on the real estate; that the farm should be sold, and the proceeds, after payment of costs, paid over to the plaintiff and her sister to the extent of their respecitve liens. The judgment entered accordingly was reversed by the Appellate Division, one of the justices dissenting, and the plaintiff and the defendant Emily Tompkins both appealed to this court.

Cullen, C. J., and O'Brien and Haight, JJ., dissenting in part.Henry D. Merchant and Abel Merchant, Jr., for appellants.

Robert E. Whalen, for respondent.

VANN, J. (after stating the facts).

When this action was before us on a previous appeal no question arose as to the payment of the legacies, or as to the evidence by which such payment was regarded as established. The main controversy then related to the priority of the liens, upon the assumption that they were all unpaid, and we held that the lien of the legacies was prior and superior to that of the mortgage. Conkling v. Weatherwax, 173 N. Y. 43, 65 N. E. 855. Our judgment of reversal opened the issue as to the payment of the legacies, and upon the trial now under review the plaintiff assumed the burden of proving the allegation in her complaint that her legacy had not been paid. Apparently she found it a matter of some difficulty, owing to the lapse of 32 years since the death of her father and of more than 30 years since her legacy became due. Her brother, Charles, was dead, and neither she nor her sister were sworn, as both were regarded as incompetent to testify. The only evidence she produced upon the question of payment consisted of the declarations of her deceased brother, the devisee and mortgagor of the farm, made in June, 1900, when payment of the legacies was demanded of him as the executor of his father's will. The witness who made such demand was allowed to testify that Charles said, in substance, that the legacies had not been paid, although objection was duly made by the defendant Hidley upon the ground that the unsworn statements of the mortgagor, made in her absence years after the execution and delivery of the mortgage to her, were hearsay, incompetent, and not binding upon her. The objection was overruled, and the defendant excepted.

The oral declarations of a deceased mortgagor, which have no relation to the resgestae or to the character or extent of his possession of the realty, made in the absence of the mortgagee many years after the mortgage was given, are incompetent to affect or defeat the lien of the mortgage, when there is no identity of interest between the mortgagor and mortgagee. Foote v. Beecher, 78 N. Y. 155;Merkle v. Beidleman, 165 N. Y. 21, 58 N. E. 757;Vrooman v. King, 36 N. Y. 477;Padgett v. Lawrence, 10 Paige, 170, 40 Am. Dec. 232;Paige v. Cagwin, 7 Hill, 361;Duane v. Paige (Sup.) 31 N. Y. Supp. 310; Man v. Snow (Sup.) 10 N. Y. Supp. 488;Burlingame v. Robbins, 21 Barb. 327, 329. Such testimony is a mere narrative by a third party of a past event, and violates the rule which excludes hearsay evidence, requires the sanction of an oath, and secures the right of cross-examination. It would open the door to fraud, promote litigation, and render titles insecure. No owner of a mortgage would feel safe, and the value of securities in general use would be seriously impaired. There was no identity of legal obligation between the mortgagor and mortgagee, so as to bring the declarations of the former within the exception founded upon a community of interest. 2 Wigmore on Ev. § 1077. Mrs. Hidley claimed under Charles as devisee, and was not in privity with him as excutor, and he could not take away her estate by his admissions made in any capacity. Mooers v. White, 6 Johns. Ch. 360, 373;Elwood v. Deifendorf, 5 Barb. 398, 407;Burnham v. Burnham, 46 App. Div. 513, 514,62 N. Y. Supp. 120.

It is insisted, however, that, while the objection taken to this testimony was good, the ruling did no harm, because the evidence was immaterial, as payment is an affirmative defense, and the burden of proving it was upon the defendant. This raises a mooted and difficult question, for the law upon the subject of alleging and proving payment is in some confusion. Quite recently it was held in an action upon contract that the plaintiff need not prove the negative fact of nonpayment, and that the defendant had the burden of establishing payment. Lerche v. Brasher, 104 N. Y. 157, 161,10 N. E. 58. No authority was cited, and the discussion was limited, but the point was distinctly presented and decided. To the same effect are Keteltas v. Myers, 19 N. Y. 231; Salisbury v. Stinson, 10 Hun, 242; Ralley v. O'Connor, 71 App. Div. 328,75 N. Y. Supp. 925; and Hicks-Alixanian v. Walton, 14 App. Div. 199,43 N. Y. Supp. 541. On the other hand, it has been held more recently, in an action at law, but not upon contract, that an allegation of nonpayment is essential, and that without it the complaint is subject to demurrer for failing to state facts sufficient to constitute a cause of action. Lent v. N. Y. & Mass. Ry. Co., 130 N. Y. 504, 29 N. E. 988. This case was carefully considered, and many leading authorities were reviewed, to which we will make no further reference. It was said that breach of contract is the essence of the cause of action, and that nonpayment is ‘a fact material to the plaintiff's cause of action and essential to be proved to entitle the plaintiff to a judgment.’ Since the question arose upon a demurrer to the complaint, the statementas to the necessity of proving the allegation of nonpayment might be regarded as obiter, were it not for the general rule that whatever it is necesary to allege it is necessany to prove. At any rate, the decision stands as the law in relation to the necessity of alleging a breach of the obligation by failing to pay it, and the logical result is that the burden of proof rests upon the party compelled to so allege. The case of Lerche v. Brasher was not considered, and it does not appear to have been called to the attention of the court. In Cochran v. Reich, 91 Hun, 440, 36 N. Y. Supp. 233, it was held necessary to allege and prove nonpayment in an action for breach of a covenant to pay rent reserved in a lease. See, also, Krower v. Reynolds, 99 N. Y. 245, 249,1 N. E. 775,Tracy v. Tracy (Sup.) 12 N. Y. Supp. 665, and Witherhead v. Allen, 4 Abb. Dec. 628, 633. The conflict of authority extends to other states. State v. Peterson, 142 Mo. 526, 39 S. W. 453,40 S. W. 1094;Wheeler & Wilson Mfg. Co. v. Tinsley, 75 Mo. 458;McElwee v. Hutchinson, 10 S. C. 436;Hubler v. Pullen, 9 Ind. 273, 68 Am. Dec. 620;Frisch v. Caler, 21 Cal. 71;Garretson...