Shrevb v. Harvey

• Decision Date: 23 July 1908
• Citation: 70 A. 671,74 N.J.E. 336
• Parties: SHREVB et al. v. HARVEY et al.
• Court: New Jersey Court of Chancery

70 A. 671

74 N.J.E. 336

SHREVB et al.

v. HARVEY et al.

Court of Chancery of New Jersey.

July 23, 1908.

(Syllabus by the Court.)

Suit by Joanna Shreve and others against Thomas E. Harvey, as administrator, etc., and others. Decree for complainants.

Eckard P. Budd, for compla inants. Charles Ewan Merritt, for defendants Annie R. Antrim, administratrix, etc., and Charles Ewan Merritt, executor.

Linton Satterthwait, for defendants Elizabeth Page, Lawrence L. Gratz, Anna G. Keller, Anna D. Keller, Maggie M. 'Keller, Amy E. Keller, Mary Keller, Marion Keller, Lillie V. Keller, and Lillie V. Keller, guardian.

Samuel A. Atkinson, for James Tallman, Sarah A. Hancock, and Mary F. Tallman, an infant, by Elmer L. Tallman, guardian.

WALKER, V. C. This is a litigated and complicated foreclosure involving these quesHons:

(1) "Whether an outstanding interest in the mortgaged premises passed by way of estoppel when the mortgagors afterwards acquired title; (2) whether distinct parcels of the mortgaged premises conveyed to third persons who have been in the exclusive possession of their several tracts for over 20 years, and who improved the same, without recognizing the mortgage, and without any claim on behalf of the mortgagees being made upon them, are still subject to the lien of the mortgage; (3) whether certain interests in the mortgage acquired by owners of the fee by bequest from certain of the mortgagees have merged—that is, whether their interests in the mortgage have merged in the fee for the benefit of subsequent mortgages?and (4) the amount that may be allowed counsel for the complainants to be taxed in the costs in such a case as this.

On December 9, 1858, Sarah H. Shreve, Mary E. Harvey, Charlotte H. Biddle, and Elizabeth Harvey, the younger, Peter E. Harvey, Amos E. Harvey, Thomas B. Harvey, and William T. Harvey, were seised in fee, as tenants in common, of a certain farm in the township of Mansfield, Burlington county, of which Peter Harvey, their father, had lately died seised. Peter Harvey died intestate, and the persons named were his children and heirs at law, each one being seised of an undivided one-eighth part of the farm, subject to the estate in dower of their mother, Elizabeth Harvey, the elder. On the same day, December 9, 1858, Sarah H. Shreve and Charles M. Shreve, her husband, Mary E. Harvey, Charlotte H. Biddle, and Israel Biddie, her husband, and Elizabeth Harvey, the younger, conveyed all their undivided half part of the farm to Peter E. Harvey, Amos E. Harvey, Thomas B. Harvey, and William T. Harvey by deed dated the same day, December 9, 1858, and which was recorded March 21, 1859, in the office of the clerk of Burlington county. After the deed was executed and delivered, the ownership of the farm was vested in Peter E. Harvey, Amos E. Harvey, Thomas B. Harvey, and William T. Harvey as tenants in common, each one of them being then seised of an undivided one-quarter interest therein. At this time Peter E. Harvey, Amos E. Harvey, and Thomas B. Harvey were all of age, and William T. Harvey was a minor. On January 1, 1859, Peter E. Harvey, Amos E. Harvey, and Thomas B. Harvey, the three adult brothers, in order to secure the payment of a portion of the purchase price of the farm, executed to their sisters, Sarah H. Shreve, Mary E. Harvey, Charlotte Hi Biddle, and Elizabeth Harvey, the younger, four several bonds, respectively, and also a mortgage on the lands conveyed to secure those bonds. The mortgage just referred to contains no covenants of seisin or for title, nor does it even recite the source of title of the mortgagors. It, however, described the farm in its entirety, and not an undivided interest therein. The fact that William T. Harvey was under the age at the time of the making of the mortgage by his adult brothers to their sisters did not absolutely incapacitate him from joining in the conveyance. He could have joined his brothers in the mortgage and ratified his act after he attained his majority. He must have been nearly of age at the time the mortgage was made, for on July 23, 1861, he joined his mother, the widow, and his brothers, Peter E. Harvey, Amos E. Harvey, and Thomas B. Harvey, in a conveyance of a portion of the mortgaged premises to George Black. He remained seised of the fee in an equal undivided one-fourth part of the premises until his death August 1, 1889, and by his last will and testament devised the same to his brothers last named, whereupon, the mother having died on August 10, 1880, and her estate in dower in the premises thereby having terminated, the three brothers became seised of the entire fee in the premises in these proportions: Peter E. Harvey, four-ninths; Amos E. Harvey, four-ninths; and Thomas B. Harvey, one-ninth, being the one-third of the one-third devised to him by his brother William T. Harvey, he, Thomas B. Harvey, having on March 25, 1868, conveyed his one-fourth interest to his brothers Peter E., Amos E., and William T. Harvey.

It will be remembered that the complainants' mortgage conveyed only the three undivided fourth parts of the premises described therein, and the first question is: Did the outstanding undivided one-fourth interest in those premises come under the lien of the mortgage when the entirety of the fee vested in the mortgagors under the devise to them of that one-fourth by their brother, William T. Harvey, upon his death in 1889? That it did not, and that the complainants' mortgage is still a lien only upon the three undivided fourths part and interest in the mortgaged premises, is to me clear. The case, upon this head, comes within the reasoning of Chancellor Runyon in Smith v. De Russy, 29 N. J. Eq. 407. The learned Chancellor says, at page 408 of 29 N. J. Eq.: "There is no covenant of seisin or warranty in the mortgage to her; and, although the entire premises are described in the mortgage as being mortgaged thereby, yet the description of the property in that instrument is followed by the statement that the property mortgaged is the same which was conveyed by the complainant to the mortgagor by deed of even date with the mortgage, and that the mortgage was given to secure the payment of part of the purchase money of that conveyance." In the case under consideration the entire premises are described in the mortgage as being mortgaged thereby, and, while there is no recital that the premises conveyed are the same premises which were granted by the mortgagees to the three mortgagors, together with their brother who did not join, nevertheless the fact is that such was the case, and that the conveyance had been made only three weeks before the mortgage was given, and therefore the mortgagees knew perfectly well that they were receiving a conveyance by way of mortgage security from three of their brothers, whereby title passed only to the three undivided fourths part of the mortgaged land. If by reason of a family arrangement, regarding the settlement of the estate of their father, it had been understood that William T. Harvey's interest in the lands was to be mortgaged to his sisters, then, as I have intimated, he doubtless would have joined in the mortgage, being within two years of his majority, and would not have repudiated his act afterwards, but would have ratified and confirmed it, or he would, upon attaining his majority, have executed to his sisters a mortgage upon his interest in the premises. That he did neither of these things, but, on the contrary, retained the fee in his one-fourth interest until his death, over 30 years after the mortgage was given, then devised it to these three brothers by will, is, to my mind, conclusive evidence that it was never intended that his, William T. Harvey's, outstanding interest in the estate should ever fall within the mortgage given by the three brothers to the four sisters on January 1, 1859, or become in any way subject to its lien. In Hannon v. Christopher, 34 N. J. Eq. 459, an after-acquired interest was held to pass by estoppel as the result of a conveyance by deed of bargain and sale without covenants, because it was found to be the intention of the parties to convey it, and it was held that, whenever it clearly appears that such was the intention of the parties, it is the duty of the court to adjudge an estoppel. This case is an authority for the view I take with reference to the mortgage under discussion, because in the case at bar it not only does not appear to have been the intention of the parties that the after-acquired interest in the lands should pass, but, on the contrary, to my mind it clearly appears that such was not the intention, and therefore no estoppel can be worked. There was excepted from the mortgage a small tract expressed to be conveyed to William C. Taylor, mentioned as a lot adjoining Thomas Page's lot. A conveyance of this lot to Taylor was made by the three brothers, the grantees of the mortgagees, on December 14, 1858, and on the same date the same grantors made a deed to Richard Page for another portion of the mortgaged premises. The deed from the sisters to the brothers was recorded May 13, 1800. The deed from the brothers to William C. Taylor, was recorded April 6, I859; the deed from the same grantors to Page, October 9, 1800. The mortgage from the brother to the sisters was recorded May 6, 1860. Besides the conveyances to Richard Page and William C. Taylor, there were conveyances made for other portions of the mortgaged premises as follows: By Elizabeth Harvey, widow, Peter E. Harvey, Amos E. Harvey, and Thomas B. Harvey, to Samuel Asay, May 1, 1860. By the same parties, William T. Harvey, joining them, to George Black, July 23, 1861. By Peter E. Harvey, William T. Harvey, and Amos E. Harvey to Mary Kirkbride, Marct 31, 1874.

It will be noticed in passing that the conveyance to Taylor was of an undivided three-fourths part of the premises, the same to Page, the same to Asay; while that to Blacl was of four-fourths, or the...