Wilbur v. Jones

• Decision Date: 18 November 1912
• Citation: 86 A. 769,80 N.J.Eq. 520
• Parties: WILBUR v. JONES.
• Court: New Jersey Supreme Court

86 A. 769

80 N.J.Eq. 520

WILBUR

v. JONES.

Court of Errors and Appeals of New Jersey.

November 18, 1912.

Appeal from Court of Chancery.

Bill by Hannah Emson Wilbur against William C. Jones. Decree for defendant, and complainant appeals. Affirmed.

The opinion of the Vice Chancellor was as follows:

"The bill in this cause was filed to foreclose a mortgage for $600 made by the defendant, William C. Jones, to the late Ephriam P. Emson November 29, 1894, and contains this recital: 'Said $600 is part payment as purchase money.' The mortgagee died in June, 1896. No interest was paid on the mortgage to him in his lifetime, and none has been paid to his executrix since his death. Mr. Jones was married at the time the mortgage was given, but his wife did not join in it, and the bill alleges that, because the mortgage was a purchase-money mortgage, its lien is superior to the inchoate right of dower of Mrs. Jones. The defendants, Mr. and Mrs. Jones, answer and say that the mortgage in question was given as collateral security for the payment of a chattel mortgage of $1,200 made by Mr. Jones to Senator Emson on November 28, 1894, the day before the making of the real estate mortgage, and that because the chattel mortgage has been fully paid and satisfied there is nothing due on the real estate mortgage, and in a cross-bill they pray that the mortgage for $600 may be delivered up to be canceled. Although these instruments bear different dates, their delivery was contemporaneous, as was also that of a deed from Emson to Jones for the premises upon which the mortgage sought to be foreclosed was given.

"The only living witness to the transaction and of the delivery of the deed by Emson to Jones and the making of the mortgage in question is Captain Charles Ewan Merritt, of Mount Holly, a member of the bar, who represented Mr. Jones; Senator Emson representing himself. Captain Merritt testified that the sale from Emson to Jones was for $3,800, paid as follows: A mortgage of $ 2,500 to clients of his, $100 cash paid byes, and $1,200 in a chattel mortgage made by Jones to Emson. He further says that after this transaction Senator Emson stated to him (Merritt) in his office that he (Emson) had asked Jones to give him a mortgage on the real estate for $600 as security for his $1,200 chattel mortgage; that that might not 'pan out' to $1,200, and there was, in his judgment, something more than $2,500 in the real estate, and he wanted a mortgage for $600 as further security for the indebtedness of $1,200, and asked Captain Merritt what objection he had to it, and he replied that it was with Mr. Jones and him (Emson); whatever they decided to do was right and they could do it. He then says that Mr. Emson wrote the $600 mortgage in his office, and that Mr. Jones 'accepted' it in his (Merritt's) presence for the purpose mentioned. It appears that Captain Merritt told Mrs. Wilbur several years ago that he could not recollect the figures for which the property was sold, but he said in explanation that since that time his attention had been called to the whole matter, and he had gone over and examined letters that he wrote to Mr. Jones, and that the whole thing had come back to him.

"The entire premises, real and personal, which figured in the transaction were a lot with a dwelling house and drug store thereon erected, and the stock in trade in the store. They were owned by a man named Compton, who conveyed them to a man named Butterworth to secure a debt of $900. Butterworth offered the entire premises to the defendant Jones for $3,800. Compton also owed Emson $900, and he (Emson), learning of the offer Butterworth had made to Jones, got Butterworth, with Compton's consent, to convey the property to him (Emson); he paying Butterworth's claim. On the day he (Emson) and Butterworth settled, Emson told him that he (Emson) had offered the property to Jones for $3,800.

"We come now to a piece of evidence of great cogency. It is a note written by Senator Emson to Mr. Jones December 31, 1894,...