Hallowell v. Daly

• Decision Date: 18 November 1903
• Parties: HALLOWELL et al. v. DALY et al.
• Court: New Jersey Court of Chancery

56 A. 234

HALLOWELL et al.

v. DALY et al.

Court of Chancery of New Jersey.

Nov. 18, 1903.

Action by William H. Hallowell and others, executors of Edward H. Marks, deceased, against Catharine Daly and others. On application of defendant Catharine Daly to open the foreclosure decree heretofore rendered, and stay sale. Dismissed.

T. P. Fay and Sherrerd Depue, for the motion.

C. L. Corbin (H. S. Terhune, of counsel), opposed.

EMERY, V. C. The decree in the case was regularly entered, and I am satisfied that the entry of the decree was not a surprise. The affidavits show that Mrs. Daly knew of the pendency of the suit, and that a decree would be entered, and that she did not, during the pendency of the suit, intend to set up any defense. The present application must therefore be denied, unless the affidavits show a defense on the merits, which should be presented. The defense relied on at the argument is that the mortgage which was given by Mrs. Daly and her husband, upon her lands, to Marks, the mortgagee, was given to secure money advanced by the mortgagee for the purpose of an illegal business carried on by the mortgagee in connection with Philip Daly, one of the mortgagors, and his son Philip Daly, Jr., or to secure the mortgagee's interest in carrying on such business. Mrs. Daly, in her first affidavit annexed to the petition, says, in reference to the consideration of the mortgage, that the money secured by the mortgage, or a large part of it, was used in and about the clubhouse, known as the "Pennsylvania Clubhouse," and the payment of debts incurred in conducting the clubhouse. Marks, the mortgagee, is deceased; and Hallowell, his agent, and one of the executors complainant, who was employed at the clubhouse in 1897 and 1898, says that Marks had no interest in the profits of the business in 1897, but that he had an interest In 1898, commencing about May. Respondent's affidavits further showed that, shortly before the execution of the mortgage (September 21, 1897), checks of Marks, the mortgagee, aggregating $20,000, the amount of the mortgage, were deposited to Mrs. Daly's individual credit in a Long Branch bank, and were subsequently checked out by her. It is not proved directly that the mortgage was given for these checks, nor is the name of the payee of the checks disclosed. Mrs. Daly, in her affidavit in reply, says, as to these checks, that she believes they were made to Philip Daly in settlement of the proceeds of the business, and not...