Hodge's Ex'rs v. Amerman

• Decision Date: 31 October 1885
• Citation: 2 A. 257,40 N.J.E. 99
• Parties: HODGE'S EX'RS v. AMERMAN.
• Court: New Jersey Court of Chancery

2 A. 257

40 N.J.E. 99

HODGE'S EX'RS

v. AMERMAN.

Court of Chancery of New Jersey.

October term, 1885.

On final hearing on bill and answer and proofs taken before a master.

R. V. Lindabury, for complainant.

John Schomp, for defendants.

VAN FLEET, V. C.The decision of this case turns on a question of notice.On the twenty-first day of March, 1871, Daniel Polhemus conveyed 14 55-100 acres of meadow land, lying near the Raritan river, between Boundbrook and Somerville, to James Hodge.The purchase money, $2,182.50, was paid, and the deed delivered near the date of the deed.Mr. Hodge took possession at once.At the date of the conveyance, the land was inclosed by a post and rail fence and by a hedge, and has been kept so inclosed ever since.The chief value of the land consisted in the hay and pasture it produced, and it was used by Mr. Hodge up to the time of his death, and has been used by his representatives since, for growing hay and pasture.Since Mr. Hodge's purchase, it has not been used for any other purpose.Mr. Hodge died testate in March, 1882, and his will was admitted to probate in the following April.The defendants, John and Gilbert S. Amerman, recovered a judgment in the supreme court of this state against Daniel Polhemus on the tenth of February, 1883, for over $300, and under an execution issued on their judgment, on the fifth of January, 1884, caused the land in question to be levied on and advertised for sale.Mr. Hodge neglected to have his deed recorded.It was not recorded until December 18, 1883, more then 10 months after the defendants recovered their judgment.The complainants, as representatives and devisees of Mr. Hodge, have filed a bill asking that the defendants be perpetually enjoined from enforcing their judgment against the land in question, on the ground that the defendants, at the time they recovered their judgment, had both actual and constructive notice of the unregistered title.

Unless the complainants have established the fact of notice to the satisfaction of the court, it is entirely clear that they are not entitled to relief, for the statute in force at the time the unregistered deed was executed expressly declares that every deed of lands shall be void and of no effect against a subsequent judgment creditor, or bona fide purchaser or mortgagee for a valuable consideration, not having notice thereof, unless it shall be recorded within 15 days after its delivery.Revision, 155, § 14.Looking at the case in the light of the documentary evidence alone, it is clear that the complainants' title is without the least legal force against the defendants' judgment, and it is equally clear that the only means by which they can make their title valid against the defendants judgment is by showing that the defendants had notice of their title at the time they recovered their judgment.Such notice may be either actual or constructive, but the burden of proving it is on the complainants.They must prove notice or the court must adjudge their title void, for such is the condition in which the statute places it.Without proof of notice, an unregistered title, by the plain words of the statute, is void and of no effect against a subsequent judgment creditor of its grantor.

As already stated, the complainants put their right to relief upon both actual and constructive notice.The proof in support of actual notice comes from the mouth of one of their own number.The witness is Mrs. Henrietta Polhemus.She is a daughter of the testator, and the wife of the only son of the judgment debtor.She testifies that John Amerman, one of the plaintiffs in the judgment at law, inquired of her some time after her father's death whether he owned any other real estate than a farm which he mentioned, and that she replied, "Yes; that he also owned a piece of low land, which he had purchased of her father-in-law, and which lay adjacent to the island farm."She says that he also inquired how many acres the tract contained, and how much her father had paid for it, and that she replied she did not know.She further says that this conversation was substantially repeated at a subsequent time.Mr. Amerman, on the contrary, says that no such conversation ever occurred, and that the first information he ever received from anybody that the title to the land in question had been conveyed to Mr. Hodge, he received from his counsel, at a date some months subsequent to the recovery of his judgment.His denial puts the evidence on this point in a state of equipoise.It is certain that both witnesses cannot tell the truth, but with the means at my command it is impossible for me to say, with anything like the certainty which should characterize a judicial conviction, which speaks the truth and which does not.The conflict in the evidence might be reconciled, and the testimony of Mrs. Polhemus accepted as trustworthy, were it possible to find in the evidence sufficient proof to justify the belief that her recollection was more perfect and vivid than that of Mr. Amerman, and that she, therefore, testified to that which she distinctly remembered, while he testified from an empty or faded memory, and affirmed that no such conversations took place, merely because he had lost all recollection of them.But the proofs will not justify such a belief.Mrs. Polhemus' memory appears to be quite faulty and imperfect.She thinks that she remembers the conversations distinctly, and she repeats them in sufficient detail to render her evidence intelligible and to make her story probable, but she does not recollect how either of the conversations arose, nor who introduced this particular topic, nor how she happened to come in contact with Mr. Amerman on either occasion, nor to whom she first repeated what was said.Her memory is almost a complete blank with respect to everything except what was said on this particular subject.There was nothing in her relations to Mr. Amerman at that time, nor in what was said on this particular subject, which would have been likely to impress this part of the conversation more deeply upon her memory than the other parts, nor to account for her memory retaining this while it allowed the other parts to escape.It is certain that her memory is not faultless; and when we remember that her evidence belongs to a class which needs to be...