Maisano v. Sauerwine

• Decision Date: 25 July 1934
• Citation: 20 Del.Ch. 309,174 A. 131
• Court: Court of Chancery of Delaware
• Parties: GUISEPPE MAISANO, also known as Joseph Mason, v. FREDERICK SAUERWINE and CAROLINE SAUERWINE

174 A. 131

20 Del.Ch. 309

GUISEPPE MAISANO, also known as Joseph Mason, v. FREDERICK SAUERWINE and CAROLINE SAUERWINE

Court of Chancery of Delaware, New Castle

July 25, 1934

BILL TO SET ASIDE DEED alleged to have been executed to defraud the complainant as a creditor of the grantor. The deed was for property in Brandywine Hundred, New Castle County assessed at twenty-six hundred dollars.

Heard on bill, answer, oral testimony heard by the Chancellor and exhibits.

Lilburne Chandler, for complainant.

Francis A. Reardon, for defendants.

OPINION

THE CHANCELLOR:

The case of Richards v. Jones, et al., 16 Del.Ch. 227 142 A. 832, defines the legal principles applicable to this case. That the grantor, when he executed the deed, was the complainant's lessee under a lease which imposed continuing rental obligations is clear and that the lessee defaulted in his rental obligations is conclusively shown by the two judgments before the justice of the peace.

The only serious question is whether or not the deed was executed by the defendant Frederick Sauerwine to his mother, the other defendant, without consideration. The joint answer of the defendants does not claim that the deed was intended to be an absolute conveyance. The answer avers the deed to have been made by the son to the mother as security for a loan of nine hundred dollars by the latter to the former. While the answer avers the loan to have been nine hundred dollars, the defendants, departing from their answer testified that it was for six hundred dollars. Their sworn testimony conflicts with their sworn answer upon this highly important fact in their case. Passing for a moment the controversy which the defendants thus have with themselves over the amount of the alleged loan, it is obvious that if the transaction was in fact one of loan, the deed in contemplation of equity is a mortgage. Frazer v. Couthy Land Co., 17 Del.Ch. 68 149 A. 428; Moore v. Dawson, 13 Del.Ch. 98, 115 A. 589; Walker's Adm'x. v. Farmers' Bank, 13 Del. 258, 8 Houst. 258, 10 A. 94, 14 A. 819; and the complainant would be entitled to subject the grantor's equity in the property to the payment of his claim in subordination, of course, to the prior right of the grantee to be repaid the sum loaned. On the defendants' own admissions, then, the complainant is entitled at the very least to look to the grantor's equity in the property for satisfaction.

But under the evidence I am forced to the conclusion that the deed was not given as security for a loan. In the first place the conflict between the defendants' answer that the loan was for nine hundred dollars and their very positive testimony that it was for six hundred dollars is a circumstance that causes queries to be raised as to the degree of reliability to be placed in the statements of the defendants. In the next place, where an absolute...