Sipley v. Wass

• Decision Date: 18 May 1892
• Citation: 24 A. 233,49 N.J.E. 463
• Parties: SIPLEY v. WASS et al.
• Court: New Jersey Court of Chancery

24 A. 233

49 N.J.E. 463

SIPLEY

v. WASS et al.

Court of Chancery of New Jersey.

May 18, 1892.

(Syllabus by the Court.)

Suit by Rachel Sipley against Selah R. Wass, Nancy Deremen, Emma Henry, and W. H. Morrow, to recover land.

John H. Dalke, for complainant.

Carl Lentz, for defendant Wass and others. Wm. H. Morrow, pro se.

PITNEY, V. C. The complainant claims to be the owner in equity of a farm in Warren county, the legal title to which is vested in the defendants Selah R. Wass and her sisters, Nancy Deremen and Emma Henry, and one object of the bill is to establish the trust, and to procure a conveyance from the holders of the legal title. The complainant claims to have obtained by legal proceedings, duly set forth, this equitable title, from one Elizabeth V. Wass, the mother of the defendants just named, and she sets out a mortgage executed by Elizabeth V. Wass and her daughter Selah R. Wass to the defendant W. H. Morrow, and prays that her title may be decreed to be paramount to and free from said mortgage. All the defendants, except Elizabeth V. Wass, have answered, and the mortgagee, W. H. Morrow, has incorporated in his answer across bill against the complainant and his codefendants, setting up his mortgage in the usual form, and praying foreclosure.

The facts are these: George W Wass, the father of Selah R. Wass and of Mrs. Deremen and Mrs. Henry, prior to 1854, was the owner of the land in question, holding it by virtue of a conveyance made to him by George W. Vaughn, dated April 22, 1847. On the 12th of October, 1854, he indorsed upon the original conveyance from Vaughn and executed a deed to his wife, Elizabeth V. Wass, in these words: "Know all men by these presents, that I, George W. Wass, of the township of Blairstown, in the county of Warren and state of New Jersey, for and in consideration of the sum of one dollar to me in hand paid by my wife, Elizabeth, at and before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, and for other good causes and considerations me thereunto moving, have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto the said Elizabeth Wass, her heirs and assigns, forever, all those two certain tracts, lots, or parcels of land and premises particularly mentioned and described in the within deed from George W. Vaughn to mo, the said George W. Wass, together with the rights, members, and appurtenances thereunto belonging, and all my right, title, and interest therein, to have and to hold, all and singular, the premises hereby granted or mentioned or intended so to be, unto the said Elizabeth Wass, to her sole and separate use, and to her heirs and assigns forever. In witness whereof I have hereunto set my hand and seal this twelfth day of October in the year of our Lord one thousand eight hundred and fifty-four. George W. Wass. [Seal.]" This deed was duly acknowledged on the same day, and recorded on the 2d of April, 1857, in the proper records of the county of Wanen. On the 29th of March, 1867, Elizabeth V. Wass executed a bond in the penal sum of $2,800 to Catharine Vaughn, conditioned for the payment of the sum of $1,400 on the 1st day of April, 1871, with interest at 7 per cent.; and, to secure the payment of that bond, she executed a mortgage upon the premises here in question, together with another tract, of about 44 acres, situate in Warren county, which other tract was that day conveyed to her by Isaac Wildrik, by deed of that date. This mortgage was executed by her without her husband joining, and was duly acknowledged, separate and apart from her husband, and duly recorded. George W. Wass was at that time living, and died in the year 1878, intestate, leaving surviving the defendants Elizabeth V. Wass, his widow, Mrs. Deremen, Mrs. Henry, and Selah R. Wass, his heirs at law. Catharine Vaughn, the obligee and mortgagee of the bond and mortgage above stated, died in 1877, and administration of her estate was duly granted to the complainant. In 1884 the complainant, as administratrix of said Catharine Vaughn, commenced a suit in the circuit court of the county of Warren against Elizabeth V. Wass to recover the amount due on the said bond; and such proceedings were had in that suit that afterwards, on the 4th of January, 1888, judgment final was entered in favor of the complainant and against the defendant therein for the sum of $3,165.81 of debt and damages, and $119.80 of costs,—in all, $3,285.61. On the 22d of July, 1886, and while the action on the bond was pending, Mrs. Wass, by deed of that date, conveyed the premises herein question, together with the tract conveyed to her by Wildrik, to her daughter, the defendant Selab R. Wass, and on the 12th of February, 1888, more than a month after the entry of the judgment against her, Mrs. Elizabeth V. Wass, together with her daughter, the defendant Selah R. Wass, executed a mortgage to W. H. Morrow to secure the payment of $300, which, however, was not recorded until the 22d of February, 1889. In the mean time, and on the 16th of February, 1888, four days after the execution of the mortgage last mentioned, the complainant herein, in her capacity of administratrix, filed her bill in this court against Elizabeth V. Wass and Selah R. Wass, founded on the judgment in the Warren circuit, praying that the conveyance from Elizabeth to Selah, made in 1886, might be declared to be fraudulent and void as against her judgment, and might be set aside. A lis pendens was filed on the 17th of February, 1888, the next day after the filing of the bill, in the Warren county clerk's office, setting forth in due form the object of the bill. Such proceedings were had on this bill in equity that on the 19th of February, 1889, a decree was made to the effect that the conveyance made by Elizabeth V. Wass to her daughter Selah R. Wass was void as against the complainant, and that the judgment of the complainant, and the debt upon which it was founded, was a lien superior to the said conveyance upon the tract of land and premises conveyed to Elizabeth V. Wass by Isaac Wildrik, and that the same be sold to pay the amount due her upon her judgment; and, further, that the right, title, and interest of the defendant Elizabeth V. Wass in the tract secondly described in her said bill (being the premises in dispute in this suit) is an equitable asset for the payment of so much of the aforesaid debt, interest, and costs as might remain after deducting the first tract, and that for the payment of the balance the said complainant had a lien from the time of filing the said bill upon the right, title, and interest of the said defendant Elizabeth V. Wass therein, prior to, and at the time, and superior to the said conveyance of the said Elizabeth V. Wass to Selah R. Wass, and that this right, title, and interest be sold to satisfy the balance, if any remained, of the said debt, interest, and costs, after making sale of the said first tract. And it was further ordered, adjudged, and decreed that the sale of the interest of the defendant Elizabeth V. Wass in the tract of land in question in this suit should not affect any legal right or interest which Selah R. Wass might nave in the lands as one of the heirs at law of her father, George W. Wass, deceased. An execution was duly issued out of this court, founded on that decree, with the result that the premises were duly brought to a sale, at which the Wildrik lot produced $1,027.90, and the interest of Elizabeth V. Wass in the tract here in question produced $115; leaving upwards of $2,500 still due complainant upon her judgment. Both tracts were purchased by Selah Sipley, who acted therein as agent for the complainant, and who afterwards conveyed the same to the complainant.

The first question is as to the effect of the deed of 854 from the husband direct to the wife. It is in form quite sufficient to convey the legal title, if it had been made to a third party. It is, however, familiar law, and was admitted at the hearing, that it was inefficient to convey the legal title to the wife in this case; and it is upon that ground that the complainant comes into this court. But, though void at law, it is equally well settled that it is good inequity. Speaking of a chattel mortgage given by the husband direct to the wife, but unaccompanied by delivery of possession of the chattels, Chief Justice Beasley, in Woodruff v. Clark, 42 N. J. Law, 199, says: "That this transfer was enforceable in equity, and that the title of the plaintiff would have been protected in that forum against the claims of the husband's creditors, no one will deny; the only question being whether such transfer can be recognized and effectuated by a court of law." The direct question was presented and decided by Vice Chancellor Bird in the unreported case of Vought v. Vought, (Sept., 1884.) The authority cited by him is Moore v. Page, 111 U. S. 118, 4 Sup. Ct. Rep. 388, where a number of authorities are collected,—notably Jones v. Clifton, 101 C. S. 225; Shepard v. Shepard, 7 Johns. Ch. 57; Hunt v. Johnson, 44 N. Y. 27; Deming v. Williams, 26 Conn. 226. In the casein hand, no question of creditors of the husband is involved. The proofs show that the wife has always been and still is in possession of the premises; and, though only a nominal consideration is mentioned in the deed, that is sufficient where the relation between the parties is that of husband and wife. Story, Eq. Jur. §§ 166-170; 2 Pom. Eq. Jur. § 588. The complainant, having acquired a right by her proceedings in this court, before mentioned, to stand in the place of Elizabeth V. Wass, is entitled to a decree that the defendants Selah R. Wass, Mrs. Deremen, and Mrs. Henry convey to her the legal title to the premises here in question, and that they pay the costs of her suit.

With regard to the mortgage of $300 given to W. H. Morrow, it will be observed that it was dated and acknowledged after the judgment was...