Drake v. Lanning

• Decision Date: 17 May 1892
• Citation: 49 N.J.E. 452,24 A. 378
• Parties: DRAKE v. LANNING.
• Court: New Jersey Court of Chancery

24 A. 378

49 N.J.E. 452

DRAKE

v. LANNING.

Court of Chancery of New Jersey.

May 17, 1892.

(Syllabus by the Court.)

Bill by Drake, executor of Mary Titus, deceased, against Henrietta Lanning to foreclose a mortgage. On motion to strike out answer and cross bill. Motion granted in part.

H. A. Drake, for the motion.

B. N. Barton and A. V. Dawes, opposed.

PITNEY, V. C. This is a bill to foreclose a mortgage given by the defendant to the complainant's testatrix. This bill, besides setting out the bond and mortgage in the usual form, also states a variety of circumstances attending the giving of those instruments which, so far as they affect the questions now to be considered, will be referred to hereafter. The answer admits the giving of the bond and mortgage, and that the mortgage debt has not been paid in money, and that the mortgagee died testate, and that complainant is her executor. It also admits most of the collateral facts set out in the bill. The cross bill sets up a parol agreement made by the testatrix by which she agreed to bequeath to the defendant the bond and mortgage held by the complainant, and also sufficient money to pay off a prior mortgage upon the same premises, held by Mr. Hamill, and it prays that this agreement may be specifically performed by the complainant. The complainant moves to strike out this pleading, assigning 19 reasons in the notice of his motion, which I think may be condensed into 2: First, that the effect of the contract set forth in the answer and cross bill was to vary a written contract by parol; second, that the contract set up discloses no consideration, and is therefore a nude pact; or that, if there be any consideration, it is so small as not to justify this court in decreeing its performance. The facts which are admitted by the pleadings are as follows: Complainant's testatrix and defendant were sisters, and at the date of the bond and mortgage in question were widows. The defendant's husband died in September, 1886, seised and possessed of a fertile and valuable farm of about 126 acres, which are the premises comprised in complainant's mortgage, situate in Mercer county, upon which were large and valuable buildings. This farm, with its buildings, constituted the homestead upon which the defendant and her husband lived in his lifetime and at his death. They were subject to two mortgages held by the complainant's testatrix. The first was dated March 26, 1863, and secured the sum of $4,300, but which had been reduced to $3,800. The amount due on the second mortgage was about $7,900, making the amount due to complainant's testatrix in the aggregate between $11,000 and $12,000. The defendant's husband left three sons, his heirs at law, and by his will gave his property to his children and widow, and authorized the executors to sell and convey his real estate. In the spring of 1887 the executors sold the personal property and stock upon the farm, and the defendant and the son who had lived at home made preparations for abandoning it. They did not, however, leave the actual possession of the farm. By deed of assignment dated November 1, 1887, but delivered on November 3, 1887, complainant's testatrix assigned the bond and mortgage for $3,800 to Mr. Hamill. By deed of the same date, but acknowledged and delivered on the 3d of November, the executors of defendant's husband conveyed the mortgaged premises to the complainant's testatrix. The consideration expressed in it is one dollar, and in it is the following recital: "The above premises are conveyed subject to a mortgage made by Absalom P. Lanning and wife to Mary Titus, recorded in the Mercer county clerk's office in Vol. O of Mortgages, page 229, and subsequently by Mary Titus assigned November 1, 1887, to Hugh H. Hamill, and this conveyance is made for the further purpose of extinguishing the mortgage on said premises made by said Absalom P. Lanning and wife to Mary Titus, recorded in said clerk's office in Vol. 59 of Mortgages, pages 73, etc., the principal of which last mentioned mortgage, with interest thereon to this date, amounting to the sum of seven thousand nine hundred and seventy dollars." On the same day the complainant's testatrix conveyed the mortgaged premises to the defendant for the consideration of $8,000, subject to the first mortgage of $3,800, and received as security for the purchase money the bond and mortgage here in question, bearing date the 3d day of November, 1887, conditioned to pay the sum of $4,200 in three years from date, with interest payable annually. The complainant's testatrix also at the same time paid to her sister, the defendant, the sum of $1,000 for the purpose, as alleged in the bill, of enabling her to restock the farm. The complainant's testatrix died in November, 1889, over 80 years old, possessed of a fortune of about $40,000, and by her will bequeathed to the defendant only $500.

The facts alleged in the answer and cross bill relied upon as a defense, and which, for the purposes of this motion, must be taken to be true, are as follows: That complainant's testatrix, prior to and at the date of this transfer, assured the defendant that she never expected to collect any interest on her bond and mortgage unless she became in need of funds, and that the only reason she exacted a bond and mortgage from the defendant was in case she should ever become in need of funds she would have the interest on the mortgage. That the complainant's testatrix in her lifetime refused to receive any interest on the bond and mortgage. That she said she didn't want any interest from them, because she was not in need of money. That after the death of defendant's husband the defendant and her son Thomas, who had lived and was living upon the farm at his father's death, had made up their minds to remove from the mortgaged premises; and Mrs. Titus, being informed of this determination, and being very desirous that the defendant should continue to live on the farm, agreed with the defendant that, if the defendant would purchase the mortgaged premises, and would procure some one to take the first mortgage for $3,800, and would give her a bond made by defendant for $4,200, to be secured by a mortgage on the premises, and if the defendant would agree to remain on the farm with her son Thomas, and if she would cultivate and operate the premises, then she (the complainant's testatrix) agreed upon her part to pay to this defendant $1,000 presently, out of which sum this defendant was to pay the back taxes upon the mortgaged premises, amounting to about $200; and the complainant's testatrix further promised and agreed that she would execute a will wherein and whereby she would bequeath to the defendant the aforesaid bond and mortgage made by the defendant to complainant's testatrix, and also a sufficient legacy out of which the defendant was to pay and discharge the first mortgage for $3,800; and incase the defendant should die before the complainant's testatrix, all the above bequests were to go to her son Thomas C. Lanning. That in pursuance of and relying upon that agreement the defendant did purchase the mortgaged premises, and did execute and deliver the bond and mortgage in question in accordance with it, and she also procured Mr. Hamill to take an assignment of the first mortgage, and did agree to remain on and operate the farm, and did remain thereon, and did in all things perform her part of the agreement; and that the complainant's testatrix, in pursuance of her agreement, paid to the defendant the sum of $1,000; and, further, that the defendant, in reliance upon that agreement, has, with her son Thomas, ever since continued to reside upon the mortgaged premises, and to cultivate them, and that she has expended since the making of the agreement large sums of money upon the premises, in setting out thereon peach and apple orchards, in repairing and building fences, and in mannling and fertilizing said mortgaged premises.

I will consider first the objection of want of consideration. It is well settled that a sufficient consideration for a contract may consist of either a benefit to the promisor, or a detriment to the promisee, or both combined. Let us see if either can be found in this contract. The fair inference from the facts as stated is that this agreement to bequeath the bond and mortgage and moneys was contemporaneous with, and part and parcel of, the arrangement which resulted in the conveyance of the farm to the defendant and the giving of the bond and mortgage. There is no allegation that the complainant's testatrix received any benefit from the transaction, unless the receiving of the cash on the first mortgage from Mr. Hamill was such a benefit; but all that the defendant had to do with that transaction was to request Mr. Hamill to advance the money and take such assignment. There is no allegation that any bonus was paid to Mr. Hamill for so doing, or that the property was not ample security not. only for that first mortgage, but also of the second mortgage, here in question. The testatrix was a mere conduit of the title from the executors of Lanning to the defendant, and the result of the transaction was that the complainant's claim against the...