Wolf v. Driggs

• Decision Date: 20 June 1888
• Parties: WOLF v. DRIGGS.
• Court: New Jersey Court of Chancery

14 A. 480

44 N.J.E. 363

WOLF

v. DRIGGS.

Court of Chancery of New Jersey.

June 20, 1888.

(Syllabus by the Court.)

On final hearing on bill and answer and proofs taken orally.

Charles W. Kimball, for complainant. Henry Woodruff and Robert Adrain, for defendant.

VAN FLEET, V. C. This is a foreclosure suit. The complainant's bill is founded on two mortgages, embracing the same lands, both made by the defendant and her husband, Spencer B. Driggs, now deceased, to Joseph Tilney, the first of which bears date May 20, 1874, and was given to secure the payment of $7,760 at the end of five years from its date, with interest payable semiannually; and the second of which bears date March 20, 1875, and was given to secure the payment of $4,500 at the end of 18 months from its date, with interest payable semiannually. The mortgaged premises consist of nearly 500 acres of marsh lands, situate in the county of Bergen. The defendant's husband signed both bonds with the defendant. The complainant obtained title to the mortgages, June 9, 1883, by assignment from the mortgagee. The due execution of the mortgages, and also of the bonds which the mortgages were given to secure, is admitted by the defendant's answer. The defendant, however, says that no money or other valuable thing was given or delivered on the execution of the mortgages, but that they were given as security for money, to be advanced by the mortgagee, with the understanding that the same was to be expended in draining the mortgaged premises by the erection of dikes, and in the construction of sluices and ditches, but that no part of the sums mentioned in the mortgages has been so expended except about $2,500, and that the amount thus expended has been so expended as to result in no benefit to her lands. The arrangement between the mortgagee and herself, in respect to the purpose for which the first mortgage was given, is described by the defendant, in her answer, as follows: "At the time of signing the same, and before the delivery of the same to Tilney, this defendant personally informed Tilney that the same was only executed, and to be delivered to him, for the purpose of securing such advances as he might thereafter make * * * for the purpose of diking said lands, and the mortgage was received by Tilney upon such understanding and agreement." And, with regard to the purpose for which the second mortgage was executed, the answer says that "on or about March 20, 1875, this defendant was informed that the $7,760 secured by the first mortgage had not been sufficient to complete the diking and draining of her lands, and that a further sum of $4,500 would be necessary to complete the same, and that Tilney would make further advances, to that amount, for that purpose, and that thereupon this defendant executed the second mortgage for the further sum of $4,500, to be advanced for the completion of said works." The only defense sought to be made in this case is such as is set forth in the quotations made above from the answer. The answer, it will be perceived, does not show that the mortgagee was under any duty or obligation whatever to the defendant. So far as appears, he was under no legal obligation to advance a penny on the mortgages; but, if it be true, as is alleged, that they were given for no present consideration passing at the time of their delivery, but to secure advances to be made in the future, then, of course, until something was advanced, they would be without the support of a consideration, and consequently unenforceable. It is not alleged, it will be noticed, that the mortgagee had promised to do the work necessary to be done to drain the defendant's lands, nor to do any work on her lands, nor to apply any money which he should advance on the mortgages to the payment of debts which the defendant had incurred, or should thereafter incur, in draining her lands, or for any other purpose. No contract of any kind has been proved by which the mortgagee became bound to the defendant for anything. So far as appears, they never had but a single interview. That occurred, according to the defendant's own evidence, on the day she executed the first bond and mortgage, and very soon after she had put her signature to those papers. She describes what took place at that interview as follows: She says, after signing the papers, she left the office of the commissioner before whom the papers had been executed, and went to the office of the mortgagee; that she found him in his inner office, just opening his safe, and that she said to him: "'Mr. Tilney, I have just signed a mortgage on those lands.' He said: 'Yes.' I said: 'I want none of that money given to Mr. Driggs. I want it spent on the lands.' He said: 'Of course, of course, Mrs. Driggs; you know it is a mere bagatelle to the value of the land. Is there any other mortgage on the land?' I said, 'No other.' There were a few other words of no importance passed, or none, as far as I can remember, and I left the office." The mortgagee denies the whole of this conversation. He says that no conversation ever took place between the defendant and himself respecting either of the mortgages, and that the only thing the defendant ever said to him about the mortgages was said in a letter which she wrote to him in July, 1874, and which was delivered to him by her husband, together with the first bond and mortgage. The defendant admits that she never spoke to the mortgagee about the second mortgage, but that she executed that, without giving any direction how it should be used, or how the money raised on it should be applied; supposing, however, as she says, that the direction which she had given respecting the use of the first would be followed in the use of the second.

From this statement it would seem to be entirely clear that, when the answer is stripped of its immaterial allegation or mere gloss, the only substantial defense which it sets up is this: that the mortgages in question were executed to secure advances to be made in the future, and that, as only $2,500 have been advanced, the complainant's recovery must be limited to that sum. The defendant, it is true, says that the complainant is not even...