Isham v. Miller

• Citation: 14 A. 20,44 N.J.E. 61
• Parties: ISHAM v. MILLER.
• Decision Date: 16 May 1888
• Court: New Jersey Court of Chancery

14 A. 20

44 N.J.E. 61

ISHAM

v. MILLER.

Court of Chancery of New Jersey.

May 16, 1888.

(Syllabus by the Court.)

Bill by Heyward Isham against Henrietta B. Miller for a decree declaring a deed absolute on its face to be a mortgage. On motion to take a disclaimer from the files.

P. H. Gilhooly, for the motion. Frank Bergen, for defendant.

VAN FLEET, V. C. The principal object of the suit in this case is to procure a decree declaring a deed absolute on its face to be a mortgage. The deed was made by the complainant to the defendant. The bill alleges that the debt which the deed was intended to secure has been paid, and also that the defendant, on its payment, conveyed part of the land, which she held as security, to the complainant, and the residue to another person, but that at the time these conveyances were made the defendant was a married woman, having a husband living, who did not join with her in the execution of the deeds; and so, in consequence of the invalidity of her effort to convey, she still stands seized of the legal title to the lands. To unravel this tangle the complainant seeks a decree declaring that the deed is a mortgage, and that the mortgage debt has been paid, and thus procure an establishment of his own title by a judicial declaration that the defendant's right in the lands has been discharged. To meet the case thus made by the complainant the defendant says that she did not have, at the time the complainant filed his bill, any right, title, or interest, either legal or equitable, in the lands in question, nor did she claim to have; and also that, if the complainant had applied to her before filing his bill, she would have executed any conveyance or release necessary to perfect his title. The complainant moved to strike the defendant's disclaimer from the files. The ground of his motion is that the actionable facts alleged in the bill make a case against which a disclaimer constitutes no defense; or, to state the ground in another form, the complainant says, for a defendant, standing in the position which the defendant in this case does, to say, "I disclaim all right and interest in the subject-matter of the litigation," neither shows that the complainant is not entitled, as against the defendant, to the relief he asks, nor that the defendant is entitled to a dismissal.

A disclaimer is a mode of defense; and, if it prevails, the defendant must be dismissed, and, as a general rule, he will have a right to be dismissed, with costs to be paid by the complainant. If, however, a defendant attempts to disclaim in a case where his disclaimer does not entitle him to a dismissal, but he must, notwithstanding his disclaimer, still be retained as a party defendant, in order that the relief which the facts alleged in the bill show the...