Humiston v. Preston

• Decision Date: 01 November 1895
• Citation: 34 A. 544,66 Conn. 579
• Court: Connecticut Supreme Court
• Parties: HUMISTON v. PRESTON et al.

34 A. 544

66 Conn. 579

HUMISTON

v. PRESTON et al.

Supreme Court of Errors of Connecticut.

Nov. 1, 1895.

Appeal from superior court, Hartford county; Thayer, Judge.

Action by Ellice Humiston against Edward M. Preston and others to foreclose a mortgage. From a judgment for defendants, plaintiff appeals. Affirmed.

Albert P. Bradstreet Frank W. Etheridge, Daniel F. Webster, and John O'Neill, for appellant.

Theodore M. Maltbie, for appellees.

FENN, J. The complaint in this action claimed the foreclosure of a certain mortgage therein described, and also possession of the mortgaged premises. The answer admitted possession of the premises by the defendants, but alleged that the mortgage note described in the complaint was without consideration, and that said note and mortgage were never delivered to the plaintiff. The facts, as found by the trial court, are as follows: On October 27, 1886, Eli D. Preston made and executed an instrument in writing, in these words: "Unionville, Conn., October 27th, 1886. For value received, I promise to pay to Ellice Preston three thousand dollars, provided she lives as hereinafter specified; $500 payable on the first day of January, 1887, and $500 on the first day of January of each year until the said sum of three thousand dollars shall be paid, without interest. In case the said Ellice Preston should not live to receive the full amount of this note, then, whatever payments are unpaid shall be paid to Fannie Dailey, Addie Ranous, Mary Branon, Edward, Charles, Elisha, Susan, and Maud Preston, my grandchildren, children of my son Edward Preston. E. D. Preston." The person named in said instrument as Ellice Preston was said Eli D. Preston's daughter-in-law, the plaintiff in this suit. On the same day, to secure said note, said Eli D. Preston executed a mortgage deed to said Ellice Preston of certain real estate, being the subject-matter of this controversy, and situated in Farmington, in this state. Immediately after executing said instruments, he placed the same in the hands of George E. Taft, of Unionville, an attorney at law, who had been employed to draft the same, with instructions to hold the same for him until January 1, 1887, at which time, if he was able to raise the money, he intended, and told said Taft that he intended, to have said papers, with a check of $500 as the first payment thereon, delivered by said Taft to the plaintiff. On December 20, 1886, said Taft instructed said Eli D. Preston that said deed ought to be recorded, and that he was unwilling to hold the same longer unless it should be recorded, and thereupon said Preston, or said Taft, by his direction, caused the same to be recorded in the land records of said town of Farmington. On January 1, 1887, said Eli D. Preston was unable to raise $500, and said Taft, at his request, continued to hold said papers until such time as said Preston could pay said $500, without further instructions relative thereto. On the —— day of March, 1887, said Eli D. Preston died insolvent. The plaintiff had no knowledge of the existence of said note and mortgage until after the death of Mr. Preston. Shortly after his death said note and mortgage were delivered to her by said Taft. There was no consideration for said note, except as hereafter stated. After the death of said Preston's son, husband of the plaintiff, she, at the request of said Preston, resided with him for several years, taking care of his house, caring for his wife in her sickness, and also keeping his books, receiving no pay therefor except her board and sufficient money to pay for her clothing, and a little pin money. At the time of the aforesaid request he promised her,...