text:
    Charlotte Augusta Drayton v. James Coleman Drayton.
    1. Desertion, for which, under the statute of this state, divorce a vinculo matrimonii may be had, is not justified by proof of conduct on the part of the .deserted party, short of that which will entitle the deserter to k decree for divorce or judicial separation.
    2. If a suit for divorce for adultery be brought promptly after separation of the-accuser from the accused, and in good faith, and be prosecuted with diligence, in a subsequent-suit for desertion by the accused, the time .consumed by it will not be computed as part of the statutory period necessary to the desertion which will authorize a decree for divorce.
    3. It is not collusion for both husband and wife to wish their matrimonial relation- dissolved. Collusion does not exist without agreement or understanding- between the parties to the suit..
    On, petition for divorce for. desertion, answer and proofs.

      Mr..Richard V. Lindabitry (with whom was Mr.-Herbert A. Shipman, of the New York bar), for the petitioner.

      Mr. Alyah A. Clark, for the respondent.
   The Chancellor.

The petitioner seeks a divorce a vinculo matrimonii, because of her husband’s willful, continued and obstinate desertion of her for upwards of two years prior to the filing of her petition.

The proofs disclose that she and the defendant were married in October, 1879, in the city of New York, and thereafter resided in that city until the year 1886, when they removed to a dwelling which the défeñdant had erected in Bernards township, in Somerset county, in which county they have retained their residence hitherto.

One evening in October, 1891, upon the petitioner’s return from New York city, her husband, in violent temper, accused her of infidelity to her marriage vows through criminal intimacy -with one B., a neighbor. ..Distressed by the indignity of the accusation, the next morning the petitioner .went to her father’s house, at Rhinebeck-on'-the Hudson, ánd remained away frqm her husband until in November, through, the intervention of. her family, he and she unwillingly became nominally reunited, and, -with their-four, children, went to.England. There they secured -furnished rooms in London and a house at "Wimbledon, at which places — sometimes at one and sometimes at the other — they lived; but" the defendant^ adhering to the conviction that his ■wife had been unfaithful to him, refused" to occupy the same room with her or to accompany her where she went, either in the pursuit of pleasure, of business or-in the performance of social -duties,: and’ would not remain with her when, for any reason, they happened to be left alone with'each other. She testifies that his conduct made her life unhappy and miserable; that she ■had no intimate friends in London to whom she could. confide her troubles; that’.she needed -some one with whom she might talk and who would secure for her legal adyicej for she made up her mind-that it was’hécessary to her happiness thát she should ‘have- a legal separation from- her -husband; that, consequently, she .telegraphed ter America to B., to come to, Loudon ; that,-at that time, her father was in France-; but, as: he had evinced a .strong desire to ¿void public scandal through her domestic "infelicity, she thought he-wbüld.disappróvé of a separation and refuse to aid her; that B. p'romptly-answered her summons, and, upon reaching his hotel in London, telegraphed her, announcing his arrival, and'she immediately visited him at his hotel, and there told him of her distress arid of her desire for legal advice; that B. was acquainted with an American lawyer who was then in London, and later arranged for" an interview between her and the lawyer,' and at his (B.’s) hotel, in the day, at noon; that she went to the. hotel at the appointed time, and there met B., with whom, because of the lawyer’s delay, she was obliged to "wait; that they waited in a public parlor for a time, and then B. proposed that they should have lunch, and'upon her assenting and the lunch being prepared, they went from the parlor to another room, ip which -they, were attended by a waiter; that while they were at lunch, her husband entered with two 'men, who evidently were detectives or were acting in that capacity, and after calling upon them to identify her and B., with them departed; that later the lawyer came, and after conference with him, she went to the rooms which she and her husband had retained in London; that she did not see her husband again, but it was arranged between her lawyer and his lawyer that she should go to Wimbledon, where her children were, and bid them good-bye; that after staying at Wimbledon two or three days with her children — hér husband then being in France — she went to Paris for the purpose of seeing her father, but, for some undisclosed reason, failed to call upon him, and returned to London, and' from that place wrote to him; that thereafter, by her father’s direction, she returned to Paris and saw him, and was persuaded by him, for the sake of her children and herself, to seek a reconciliation with her husband, and that thereupon she exerted every effort to bring about such a reconciliation and to induce her husband to permit her to return to him.

The proofs abundantly satisfy me that these efforts were made in good faith, and that every overture on her part was rejected by the defendant, who steadfastly insisted that she had been unfaithful to him and her’marriage vows.

The precise date of the separation of the husband from his wife is not in proof, but it is clear that it was prior to the 1st of March, 1892, so that when the petition in this suit was filed more than two years had elapsed.

The attitude of the defendant satisfies me that his separation from his wife has been willful, continued and obstinate. The-question is, was it justifiable ?

The records of this court show that, on the 27th of June, 1894, Mr. Drayton filed his bill for an absolute divorce from his wife upon allegations of adultery upon her part with B., and that in October of the same year Mrs. Drayton answered that bill, denying the truth of its allegations, and that from that timé hitherto the defendant has not produced his proofs and brought his cause to hearing. By his answer in the present suit he does not reiterate his charges against his wife in defence to her action, but contents himself with a denial that his separation from her has been willful, continued and obstinate, averring that his wife was “ fully advised of his movements and his reasons therefor.”

After the petitioner’s proofs had been closed, the defendant declared that he would not offer any evidence upon his part.

It clearly appears that the defendant entertained grave suspicions which, I think, convinced him that his wife had been disloyal to her marriage vows and duty, and, when it is considered that the wife, rendered unhappy by her husband’s suspicion of her adultery with B., selecting that person in preference to her father and all other kindred and friends, as her supporter in the emergency that confronted her, and summoned him by telegraph from America to England, and that he promptly obeyed that summons, and at his hotel, to which she went, counseled with her in dealing with her husband with a view to a separation from him, it is impossible to escape the conviction that the husband’s grave suspicions were not destitute of foundation, in questionable circumstances at least. But I fail to find, and my attention has not been directed to any adjudication which holds that, under a statute similar to ours, a husband may, with impunity, be guilty of desertion of his wife, merely because he believes her, even under gravely-suspicious circumstances, to have been guilty of adultery.

In a Massachusetts case, strong prima facie evidence of a husband’s adultery appears to have been held sufficient to defeat his application for divorce for the wife’s desertion, but there the statute provided that the desertion was to be without fault on his part. Clapp v. Clapp, 97 Mass. 531. The generally-accepted, and, I think, the true, doctrine is, that continued desertion, as contemplated by such a statute as ours, is justified only when it is shown by clear and satisfactory proof that the deserting party has been so offended against as to authorize, at his instance, a decree for divorce or judicial separation. Blade v. Blade, 3 Stew. Eq. 221; Moores v. Moores, 1 C. E. Gr. 275; Weigand v. Weigand, 14 Stew. Eq. 209; 1 Bish. Mar., D. & S. §§ 1217, 1742; Browne Div. 152, 159; Stew. Mar. & D. § 257.

In Grove’s Appeal, 37 Pa. 443, 447, Judge Strong said: “We have adopted the same principle which rules in the English ecclesiastical courts. In that country, where cohabitation is suspended by either the husband or wife, of his or her own motion, without a sufficient reason, a suit for a restitution of conjugal rights may be maintained by the inj ured party. Nothing amounts to a bar against such a suit, except such facts as would entitle the defendant to a divorce. * * * The interests of society, the happiness of the parties and the welfare of families demand such a rule. Separation is not to be tolerated for light causes.” See, also, Turton v. Turton, 3 Hagg. Ec. 338, 350; Sopwith v. Sopwith, 2 Swab. & T. 160, 164; 30 L. J. (P. M. & A.) 131.

If, then, the defendant would rely upon his wife’s adultery as a defence against her charge of desertion, he must prove it.

There is no evidence that it was the intention of the defendant, at the time he left the petitioner, to institute a suit for divorce on the ground of her adultery. He did, in fact, commence such a suit in June, 1894, a time so remote from the commencement of the separation that more than the period prescribed by law, within which desertion must continue to constitute a cause for divorce, had intervened and thereby a cause for divorce had then become available to her, and éven after the lapse of that time his suit was not prosecuted with diligence.

If his suit had been brought promptly and in good faith after the separation, the time'consumed by it, during which the law does not require hita to cohabit with his wife, would not be computed as part of the statutory period necessary to the desertion which will authorize a decree for divorce (1 Bish. Mar., D. & S. § 1757), but its mere institution after such statutory period of'desertion was complete (it matters not whether in good faith or otherwise) will not avail as a defence to a suit by the wife for divorce on the ground of desertion. 1 Bish. Mar., D. & S. § 1758. It was his duty to act expeditiously, so that his wife should not remain longer than necessity required, if guilty, unconvicted, and if innocent, under the shadow of a scandalous and disgraceful charge.

The remaining consideration which suggests itself is whether the present suit is collusive.

I do not find enough in the case to warrant me in so holding. The apparent confidence with which the defendant originally made the accusations against his wife, coupled with his surprising failure, by way of defence, to efficiently reaffirm his charges in his answer, his present submission of the case upon the testimony produced by the petitioner alone, and the failure of the petitioner to demand the custody of her children, engender a strong apprehension of the existence of collusion in this suit which has caused me to closely scrutinize the testimony. I find that, after the announcement that the defendant would not offer proofs, the counsel for the petitioner, evidently anticipating the question which the defendant’s determination would arouse in my mind, recalled the petitioner to the witness-stand, where, in explicit terms, she stated that her suit was not brought and the defendant’s defence on the ground of adultery was not withheld, in pursuance of any agreement or collusion between her and her husband, or between any others acting in behalf of them or either of them, and testified that it was her expectation, until her ■ husband’s answer was filed, that he would defend the suit on the ground of her adultery, and that one object of her suit was to force that issue to immediate trial, and then denied that she had been unfaithful to her marriage obligation.

After the case was submitted to me, out of abundant caution against the deception of a collusive suit, I caused the petitioner to be again and further examined as follows, upon interrogatories under commission sent to England, where she was then sojourning:

“1. Was there any arrangement, agreement or understanding between you and your liusband, or between any persons acting in behalf of you and your husband or either of you, or in behalf of your father’s family or any member or members of it, in pursuance of which' your suit was commenced or prosecuted, or in pursuance of which your husband refrained from defending against your suit on the ground of your alleged adultery ?
“Answer. There was not.-
S. Have you had any intimation of the existénce of any such arrangement or agreement ? If yes, state fully what that intimation was.
“Answea-. I have not.
S. Bead over with care the testimony which you gave in this cause, on the 27 th of May, 1895, and state whether you are aware of any suppression or evasion, either in or by the questions put or in or by the answers given, or by the omission of questions or answers, whereby some agreement, arrangement, or understanding of the character indicated by the first above question is not revealed to the court ? If yes, state what is suppressed or evaded.
“Answer. I have read over my testimony, given on the 27th of May, 1895, and answer that I am not aware of any suppression or evasion, either in or by the questions put, or in or by the answers given, or by reason of the omission of questions or answers, whereby some agreement, arrangement or under* standing of the character indicated by the first above question is not revealed to the court.
4- Why do you not ask for the custody of your children or the custody of one or more of them ?
“Answer. A proceeding was commenced in the surrogate’s court of the county of New York, on the 12th of June, 1894, wherein I am the petitioner, and in which I ask to be appointed guardian of my two youngest children, and to have such an allowance as the surrogate should determine to be a proper one for their support, made payable to me as such guardian. This proceeding has been adjourned from time to time, pending the final accounting of the trustees under my father’s will, which will be had in March, 1896'. My father left a fund of $850,000 in the hands of New York trustees, for the support of my children. It was for an allowance out of that fund that I applied to the surrogate of New York, but I was influenced quite as much by this: I expected that my suit would be defended on the ground of infidelity. My lawyers told me that even if I obtained a divorce on the ground of desertion, I might not be awarded the custody of my children, as other considerations would control that question. They also told me that the question of who should have the control of the children could be raised after the divorce proceedings were ended, as well as in such proceedings. I thought it best, on this account, independent of the New York proceedings, to tender in my divorce suit the single question of my guilt or innocence of the charges my husband was making against me, and leave the question of custody of our children to be determined afterwards.
“5. Have you in any manner, directly or indirectly, assented to your husband’s having and retaining the custody of your children? If so, state with full particulars what that assent was and thg facts and circumstances which led to it.
“Answer. I have not.”

The reason why the defendant did not urge the defence of adultery is not apparent. It may be that he was satisfied that he could not prove it, or it may possibly be that, in view of the probable success of her suit and the attainment of an absolute divorce in it, if he did.not successfully defend on the ground of her adultery, to avoid the scandal which the proof of such a defence would occasion, he denied the desertion merely. It is not collusion for both husband and wife to wish their matrimonial relation dissolved. 2 Bish. Mar., D. & S. § 256. And it maybe that the petitioner considered that, as her husband desired a divorce, her failure to demand the custody of her children might induce him to withhold the defence which she anticipated and avoid for both of them an acrimonious and mortifying litigation, whatever might be its result. Action upon such consideration would not be collusion. Collusion does not exist without an agreement or understanding between the parties to the suit.

It is noted that, in his answer, after denying the desertion charged, the defendant adds the significant language, that his wife was fully advised of his movements and his reasons therefor,” which appears to me to be the covert reiteration of his charges against his wife, sufficient to mortify and insult her, without putting him to the necessity of proving his charges, and tends to show that when he answered, at least, he did not act collusively with her, for in that event it is not probable that he would have made this useless and unnecessary averment.

I do not' find anything in the case to justify me in refusing the decree sought.

The divorce will be granted'.


source: Caselaw Access Project

author: Bird, V. C.

license: Public Domain

text:
    Truman M. Dodson et al. v. James Severs et al.

      By a clerical error the decision reported in 8 Dick. Ch. Rep. 633, is stated to be on appeal from a decree on an opinion reported in 7 Dick. Ch. Rep. The opinion upon which the decree in the cause in chancery was based is now published. — Rep.

   Bird, V. C.

The testimony in this case shows that the relation of parent and child existed between the grantor and grantee. There is an utter absence of any proof that the grantee was ever emancipated. It is very manifest that the relation, which existed from the time the child was one year of age until she became twenty-one, continued unbroken till her death. This being the case, the question is, was her grandfather or grantor under any obligations to the grandchild, his grantee, at the time of the execution of the deed; and if not, then was the deed, which passed the title to the grantee, valid as to the grantor’s existing creditors? Not only is there nothing .to show any emancipation or change of relation, but there is nothing to show any contract or understanding that the grantee was working for wages, or with the expectation of compensation of any kind. As I understand the authorities, they are very clear to the effect that, under such circumstances, no legal or equitable claim exists.

In Ridgeway v. English, 2 Zab. 409, the action was brought by a married daughter and her husband against the executors of her father to recover for services which were alleged to have been performed for her father in his lifetime, and after the daughter arrived at her majority. The court said: “When a daughter, after arriving of age, continues to reside in her father’s family, supported by him, and performing useful services in return, the law will not, except under special circumstances, imply a promise on the part of the father to pay for such services. If she demand pay, it is incumbent on her to show affirmatively that compensation was to be made, and that it was so expected by both parties, or that the services were performed under such circumstances as that the expectation was reasonable and proper.”

In Updike v. Titus, 2 Beas. 151, the law was thus stated:

“ The law implies no promise to pay for services rendered by members of a family to each other, whether by parents, children or other relatives. The rule is well settled that a mere moral obligation constitutes no legal consideration for a contract.” See, also, Prickett v. Prickett, 5 C. E. Gr. 478. This case shows that there must be either an agreement binding between the parties, or such circumstances as would justify the court in coming to the conclusion that compensation was intended on the one side and expected on the other, without which the services would not have been rendered.

But, in effect, it has been maintained that this conveyance can be supported even as against creditors of the grantor, because from all of the circumstances of the case the grantor was under obligations to make such conveyance. In other words, the services having been rendered by the grantee after as well as before she became of age, and the deed having been delivered, the presumption is that it was for such good and valuable consideration as that a court of equity will not feel itself bound to disturb it. This has been the practice of the court.

In Gardner v. Schooley, 10 C. E. Gr. 150, it was claimed that services had been rendered to a parent by his daughter. To compensate her he gave her a mortgage upon his real estate. This court declared the mortgage to be void as to creditors, upon the principles stated in the authorities above cited.

All of these cases, as well as many others, were referred to approvingly in what will doubtless be considered a leading case upon the subject — Disbrow v. Durand, 25 Vr. 343. The doctrine, as previously declared whenever the question has been presented, was in this case unequivocally pronounced by the chancellor, in delivering the opinion for the court of errors and appeals. He said: “ Ordinarily, where services were rendered and voluntarily accepted, the law will imply a promise upon the part of the recipient to pay for them, but where the services are rendered by members of a family, living as one household, to each other, there will be no such implication from the mere rendition and acceptance of the services. In order to recover for the services the plaintiff must affirmatively show either that an express contract for the remuneration existed, or that the circumstances under which the services were rendered were such as exhibit a reasonable and proper expectation that there would be compensation. The reason of this exception to the ordinary rule is that the household family relationship is presumed to abound in reciprocal acts of kindness and good will, which tend to the mutual comfort and convenience of the family, and are gratuitously performed; and where that relationship appears, the ordinary implication of a promise to pay for services does not arise because the presumption which supports such implication is nullified by the presumption that between members of a household services are gratuitously performed. The proof of the service, and as well of the family relation, leaves the case in equipoise, from which the plaintiff must remove it or fail.” He also says: “ It rests upon the idea of the mutual independence of those who are members of one immediate family, and such a family may exist though composed of remote relations, and even of persons between whom there is no tie of blood.”

. Hence, whenever or wherever a family or domestic relation exists, whether composed of kindred or not, the presumption is one of mutuality, or of services upon the one hand and of support upon the other, which presumption will continue until overcome by proof, express or clearly implied, of an agreement or understanding to the contrary. The answer admits that the grantee “was a daughter of the said James Taylor (who was the grantor), and from her childhood until his death had resided with the said James Taylor as a member of his family, and was supported, maintained and educated by him.”

The testimony not only fully sustains this admission, but shows very conclusively that there was no change of relationship, or that there was any agreement or understanding whatever between the parties creating any other obligation.

Reaching this conclusion, it seems to follow inevitably that the conveyance of Mr. Taylor to his grandchild must be decreed to have been voluntary, and consequently subject to the claims of existing creditors. The learned counsel for the defendant sought to create the impression that this case could be distinguished from the principle promulgated in the case of Haston v. Castner, 4 Stew. Eq. 697, with respect to voluntary conveyances, but I am entirely unable to find any foundation which has the slightest appearance of solidity upon which to base any reason for the distinction. I think the law as there expressed has been understood by law courts in New Jersey as being a completely satisfactory exposition of it, and that the members of the bar have almost universally so regarded it.

The deed in question should be declared void as to the judgment of the complainants. I will so advise, with costs.'


author: Pitney, Y. C.

text:
    Consolidated Coal Company v. Keystone Chemical Company.
    1. A bookkeeper, in the regular employ of a corporation, is entitled to the lien given by statute for his services.
    2. The fact that the claimant was also a director of the corporation, under the circumstances, does not affect his rights.
    In insolvency. On claim of Frank P. Bailey, an employe, for preferential payment of his claim.

      Mr. James JE. Hays, for the receiver.

      Mr. Howard Oarrow, for the claimant.

      Mr. C: V. I). Joline and Mr. Norman Grey, for the creditors.
   Pitney, Y. C.

The claimant was an employe of the insolvent company, in the capacity of bookkeeper. He entered the employ of the company on the 1st of January, 1895, at a salary of $2,000 a year. A receiver of the company was appointed,, upon a decree of insolvency, on the 12th of March, 1896. At that time there was due to the claimant $225.76, which amount he asked to be paid in full, under the act of 1892. P. L. of 1892 p. 426.

The claim is resisted on the ground that the claimant was, during the time the amount was being earned, a director of the company.. It appears that in the latter part of 1895 there was a vacancy in the board of directors, and the other directors, for the purpose of filling it, transferred to Mr. Bailey sufficient shares of stock to make him competent for that purpose, and elected him a director, and he served as such from that time forward.

He had no pecuniary interest in the concern and paid nothing for his stock.

The claim is resisted on the authority of England’s Executors v. Beatty Organ Co., 14 Stew. Eq. 471. In that case, Vice-Chancellor Bird rejected a claim for preference in favor of the president of the corporation, on the ground that he was not within the purview of the act giving such preference. The act then in force is found on page 188 of the Revision, section 63 of the Corporation act. The learned vice-chancellor based his opinion upon the ground that the president was not a “ laborer in the employ of the corporation.” The act of 1892 is a little broader in its language than that of the original section 63 of the Corporation act. Instead of the words “the laborers in the employ thereof,” we have in the later act the words “ the laborers and workmen and all persons doing labor or service of whatever character in the regular employ of such corporation shall have a first and prior lien ” &c.

Now, I can very well see how a president of a corporation, under the old act, could not be held to be a “laborer in the employ of the corporation.” His work might be merely supervisory in its character, and not include any service involving labor. But a bookkeeper’s services do involve labor in the strict sense of that word; hence, a bookkeeper is a laborer. Besides, the language of the latter act says, “ labor or service of whatever character in the regular employ” &c. So that I think that the claimant in this case comes strictly within the language of the act; and I further think that the fact that he was a director, under the circumstances, does not alter the case so far as to bring it within the spirit of the judgment of Vice-Chancellor Bird, just cited. He was not an employer of himself in any proper sense of that word.

I think he is entitled to preference, and will so advise.


author: Pitney, V. C.

text:
    John Edward Lovett et ux. v. Sarah L. Taylor and husband, and George W. Lovett.
    1. No trust can be implied in favor of the grantor of land by deed operating under the statute of uses which contains the usual declaration of uses in favor of the grantee.
    2. In the absence of fraud in the procuration of a deed of conveyance of land, fraud cannot be predicated of a mere refusal of a grantee to perform a parol promise, not proven by any writing, to hold the same in trust for the grantor.
    3. Circumstances stated sufficient to warrant the court in setting aside an absolute deed intended to be made in trust.
    On bill for partition.
    The complainant John Edward Lovett, commonly called “Edward” Lovett, and the defendants Sarah L. Taylor and George W. Lovett are the three children and sole heirs-at-law of John Lovett, who died intestate in March, 1865, seized of the premises, leaving, besides his three children just named, a widow, Jane ~W. Lovett, who died in 1885.
    By deed dated the 20th of January, 1869, the defendant George W. Lovett conveyed all the equal undivided one-third part of the premises in question to his mother, Jane W. Lovett. The conveyance was effected by an ordinary deed of bargain and sale to uses, with habendum to the grantee, her heirs and assigns, for her and their only proper use, benefit and behoof forever, with the usual covenants of ownership, against encumbrances, right to convey and of general warranty.
    Jane Lovett, the widow, died intestate, in 1885, without having made any conveyance of her interest derived under this deed in the premises described in the bill.
    The complainant, by his bill, claims a one-third interest in the premises, as heir-at-law of his father, John Lovett, and a one-ninth interest as the heir-at-law of his mother, she having, as he claims, died seized of a one-third interest therein. .
    The defendant George W. Lovett, by his answer, admits having made the conveyance of the 20th of January, 1869, to his mother, but denies that the same was intended to be made as an absolute conveyance, and alleges that the same was made without consideration, and that the intention was that the premises should be held in trust by her for' him and for his benefit, and that a reconveyance thereof was to be made at any time upon his request, but that his mother died without having made such reconveyance. He denies that his mother was seized in equity, at the time of her death, of an undivided one-third part of the lands, but that the said one-third part was held by her in trust for the benefit of him, George, and admits that the legal title descended to her heirs-at-law, but in trust for him.
    The defendant Sarah L. Taylor, by her answer, admits the trust, and that her brother George is seized of an equal undivided one-third part of the premises."
    The question in dispute, then, is as to the ownership in equity by the complainant of an equal undivided one-ninth part of the premises.
    The bill further sets out that the premises of which partition is prayed, and other premises belonging to the parties, have been, since the mother’s death, in the actual possession, by tenants, of the defendant Mrs. Taylor, she undertaking the personal management of it, and making payments from time to time to complainant on account of his share of the rents and profits, and prays that Mrs. Taylor may account for the moneys received by her. Mrs. Taylor, in her answer, did account for the rents, but no question is raised as to its accuracy at this time. The sole question at the hearing was as to whether the complainant held the legal title to one equal undivided ninth part of the premises in trust for his brother, George W. Lovett, the defendant.

      Mr. William E. Skinner, for the complainant.

      Mr. Milton Demarest, for the defendant George W. Lovett.
   Pitney, V. C.

The defendant does not allege or prove any written declaration of trust or admission thereof, but alleges that the trust is to be inferred or held to result from the circumstances of the case.

These circumstances are not disputed and are as follows: The ancestor died early in 1865, seized of other pieces of real estate besides those set out in the bill, mostly improved and productive, and all situate in the village of Hackensack. He was also possessed of about $15,000 of personal property, consisting of about $5,000 in moneyed securities and the balance in furniture and liquors in his hotel. The widow took out letters of administration and assumed control of the real estate, and retained it until her death, collecting the rents and dividing them in fourths between herself and her three children. She seems to have conducted the hotel for the first few months, and then to have sold out the furniture and stock of liquors to a tenant. At the death of the father two of the three children were of age, and the defendant George a minor. In November, 1865, $11,216.25 were distributed among the next of kin, according to the statute, and I infer that this was the net proceeds of the personal estate. The share of the defendant George amounted to $2,501.40, and was receipted for by his guardian.

Some time prior to April 29th, 1869, George went into the grocery business in Hackensack, first'alone, and afterwards took in as partners two brothers named Stewart, when the business was conducted under the partnership name of Stewart & Lovett. On the day last named, April 29th, 1869, the complainant, John Edward, bought out the interest of one of the Stewarts, and became a partner therein. This date is fixed by the original receipt given to the complainant, and clears up some uncertainty upon the point in the oral evidence of the witnesses, and I have no doubt from the evidence that defendant George had been in the business some time previous to the date (January 20th, 1869) of the conveyance to his mother.

At and before the date of that conveyance George had been acquiring expensive and dissipated habits, and developing a disposition for bad company and to squander his estate, threatening to mortgage it. He' spent more than his income, and ran in debt for hotel and livery bills, in, however, comparatively small amounts. In this situation of affairs, his sister and her husband, who appear to be sensible and worthy people and much superior in mental calibre and intelligence to the brothers, called into their counsel and assistance Judge B., a practicing lawyer in Hackensack. He had been and was then the counsel of the mother. His account of the affair is brief and clear:

The circumstances that led up to the giving of this deed were simply these: George W. Lovett was getting into bad company and forming bad habits ; he was really going to the bad; he was incurring hotel bills and livery bills, and this deed was given for the purpose of keeping him from squandering his property.”

No consideration was paid, and nothing was said at or before the execution and delivery of the deed with regard to the estate the grantee was to take under it. “The fact was,” says Judge B., “ that she simply took it for the purpose of preserving the property for George so that he should not squander it.” ’ The fact that he was in debt and threatened with suit was one of the causes that led up to the deed. He further says that he cannot say there was any understanding, on the part of Mrs. Lovett, at the time, that the property should be reconveyed to George, but he says that' frequently in after years his mother was minded to so reconvey it, and was prevented by the continued influence of Mr. and Mrs. Taylor and himself from so doing.

She continued to pay George his share of the rents after the conveyance up to her death, and on her death-bed spoke to her daughter, Mrs. Taylor, about the deed, and said:

“I leave George in your hands, and you know what my wishes are, and you are to do as I intended, that is, to give him his income the same as he has been getting it.”

In other respects Mrs. Taylor simply corroborates Judge B.

Mr. Taylor goes a little further than Judge B. He gives the same reason for the making of the conveyance, and says he assisted in inducing George to make it and so forth, and adds :

“ I promised George that if anything happened I would see him straight in the matter as fer as I could. With that understanding he signed the deed. Mrs. Lovett promised him to transfer or reconvey at any time afterwards — a few years afterwards — and I have always neglected to get a writing out of her showing that that was the case.”

George himself has little memory as to what occurred in connection with the giving of the deed, except that both his brother-in-law, Taylor, and Judge B. advised him to make the deed, and that he made it to his mother in trust, and that she was willing at all times to convey it back, but never did. The complainant swears, and I believe him, that he was not consulted in the affair and only heard of it from outsiders; that the rumor in the town was that George had made án assignment to his mother. This rumor would naturally arise from a perusal of the deed, which conveyed not only all the lands held in common and all his interest in his father’s estate, but all his interest in the firm of Taylor & Lovett. He further says that afterwards, in his mother’s lifetime, he understood that George was pérsistently trying to get his property back again and that his mother refused. He knew nothing of the contents of the deed and was ignorant of its effect until he consulted counsel preliminary to this suit.

The deed, as we have seen, was dated and executed on January 20th, 1869, but was not recorded until April 9th, and twenty days later complainant bought his way into the firm of Taylor & Lovett. Mrs. Lovett, the mother, was obliged to back the firm, and became, in effect, a partner and liable as such. Judge B., who, as counsel, became familiar with the affairs, says that her liability arose not only from her taking the assignment of George’s interest, included in the deed of January 20th, 1869, but also from meddling in the affairs of the firm, while Mr. Taylor says her liability arose from endorsing the firm’s notes. Be that as it may, the firm failed in less than a year, and several judgments were recovered against Stewart, the complainant and Mrs. Lovett. But the records are not produced to show whether she was charged as partner or endorser. Judge B. settled these judgments and other indebtedness of the firm to the extent of about $3,300, with money furnished by Mrs. Lovett, and she paid all George’s debts out of the rents and proceeds of sales.

Subsequently Mrs. Lovett, jointly with, the complainant and Mrs. Taylor, made conveyance of two parcels of the land and divided the proceeds equally among her children. After her death one or more conveyances of premises were made by the parties hereto and the proceeds divided into thirds among them. Besides these sales, one parcel was actually partitioned by agreement, by means of mutual releases, and the evidence tends to show that the intention was to make a partition in parts of equal value, instead of four-ninths to complainant, and four-ninths to Mrs. Taylor, and one-ninth only to George; and this treatment of these parcels is relied upon as admissions by the complainant that he held only a one-third interest instead of four-ninths.

In considering the effect of these facts, it is worth while to premise that the case is bare either of the element of fraud or accident. It is impossible to find the least ground to accuse the principal actors and promoters, Mr. and Mrs. Taylor and Judge B., of any sort of fraud. Their motives were of the best and kindest, namely, to protect the young man from himself and to preserve this property to his future use by putting it entirely beyond his control. They practiced upon him no deceit and made no false representations. There is no reason to suspect that either the mother or daughter induced him to do this act with the secret expectation and intention to make a gain to themselves at the expense of the son of the one and the brother of the other. Nor is there the least ground to infer any accident or even mistake in the ordinary acceptation of the word. The deed was prepared by, and the transaction carried through under the supervision of, experienced counsel who know just what the parties desired to accomplish, and the deed was in all its parts just what he intended it should be. He' thoroughly understood its effect, and the presumption is that the grantor did also. He makes.no pretence to the contrary, except to say that he understood that it was to be in trust for himself, and that, indeed, was the understanding of all the parties.

The case is clearly distinguishable from those where a conveyanee has, by mistake in verbiage, taken on an effect different from that intended. We are not now, of course, considering mistakes in judgment as to the policy of a course to be pursued, or means to be adopted, in attaining a certain result, or of a mere failure to appreciate the necessity of providing against a future contingency. Judge B. might have devised a declaration of trust to be executed by Mrs. Lovett, which would have embodied in itself a family settlement of George’s share in the estate, in accordance with the intention of the parties. Whether his failure to suggest and properly embody in writing such an arrangement entitles defendant to relief or not will be considered further on.

In point of fact, the grantor was content to rely, for present purposes at least, upon his mother’s verbal promise, and has enjoyed the benefit of it for more than twenty-five years.

His reliance at the hearing was (1) upon an implied or resulting trust, and (2) upon the actual intention of the parties.

And first, as to a trust resulting by implication. It was very properly admitted at the argument that the trust must result from the facts as they existed at the date of the transaction. It cannot arise from matters ex post facto. Cutler v. Tuttle, 4 C. E. Gr. 549; Tunnard v. Littell, 8 C. E. Gr. 264; Midmer v. Midmer, 11 C. E. Gr. 299; Krauth v. Thiele, 18 Stew. Eq. 407 ; Whitly v. Ogle, 2 Dick. Ch. Rep. 67.

It is also clear that the facts and circumstances out of which the trust arises may be proven by parol. It is also clear that it must arise out of facts and circumstances as distinguished from a mere parol promise or contract. Brown Stat. F. §§ 95, 499 and cases cited; 3 Reed Stat. F. § 899; Montacute v. Maxwell, 1 P. Wms. 618, where Lord Macclesfield says': “Where there is no fraud, only relying upon the honor, word or promise of the defendant, the statute makes those promises void. Equity will not interfere.” And Mr. Reed (at § 899) says that “ constructive trusts never arise from the agreement that there shall be such a trust.” And the supreme court of Illinois, in Williams v. Brown, 14 Ill. 200, said tersely: “ Ho contract between parties can make a resulting trust.” And Chancellor Williamson, in Baldwin v. Campfield, 4 Halst. 891 (at p. 892), declares the same doctrine. He says : “ I need not stop here to show that no relief can be afforded upon this bill, upon the ground of any parol agreement between the parties. Trusts are express, and implied or resulting trusts. An express trust must be in writing. A resulting trust is a trust which is raised or created by the act or construction of law. A trust created by the act of the parties is an express trust.”

This must be so upon principle, and to hold otherwise is to disregard the statute of frauds.

The case must be considered independent of the mother’s promise to the son, and must rest upon the bare facts.

The principal fact relied upon to show a resulting trust is that the conveyance was made without consideration from a son to his mother, with the intention to secure it for the son against his own improvidence.

I think it must be considered as settled by the uniform course of judicial expression and decision in this state, and by the clear weight of authority in the other states of our Union, that no trust results from the mere non-payment of consideration upon a conveyance like that in this case. The reason of this is clearly set forth by Mr. Perry in his treatise. 1 Perry Trusts §§ 161, 162. The old common-law conveyances operated to pass the title without the machinery of a declaration of uses, and where no use was declared, and in the absence of an actual consideration paid, the courts raised a resulting trust in favor of the grantor. But modern conveyances, of which the one in hand is a sample, operate under the statute of uses and contain an express declaration of uses, and it is contrary to first principles to permit this declaration to be contradicted by parol except in cases of fraud, accident or mistake.

To the same effect is Hill Trust, p. 107. The author there, when speaking of deeds of this character without consideration, says:

“But parol declarations cannot be received in evidence with this object, namely, to establish a trust; for, in these cases, there exists no resulting or presumptive trust, and the admission of such evidence would be for the purpose of contradicting the written instrument and establishing a trust by parol in the very teeth of the statute of frauds.”

The authorities in this state, supporting this doctrine, are the following: Hutchinson v. Tyndall, 2 Gr. Ch. 357 (at p. 362), (a case of a voluntary conveyance to a stranger); Baldwin v. Campfield, 4 Halst. 891 (at p. 901), per Williamson, C. (at pp. 902, 904), Per Elmer, J. (a case of a voluntary deed by a father to a son-in-law); Smith v. Howell, 3 Stock. 349 (at p. 359), per Williamson, C.; Whyte v. Arthur, 2 C. E. Gr. 521; S. C., Court of Errors and Appeals, p. 523 (deed and mortgage, parent to child); Hogan v. Jaques, 4 C. E. Gr. 123 (at pp. 126, 127), per Zabriskie C.; Osborn v. Osborn, 2 Stew. Eq. 385 (at p. 387), per. Runyon, C.

Many authorities in other states are collected in the note to 3 Reed Stat. F. § 998, and by the learned American editors of Leading Cases in Equity in their notes to Dyer v. Dyer, 4 Lead. Cas. Eq. (Am. ed.) 350, 356. I cite Rathburn v. Rathburn, 6 Barb. 98 (at p. 107); Squire v. Harder, 1 Paige 493; Vandervolgen v. Yates, 9 N. Y. 219; Porter v. Mayfield, 21 Pa. St. 263; Barry v. Hill, 166 Pa. St. 344; Titcomb v. Morrell, 10 Allen 15; Blodgett v. Hildreth, 103 Mass. 484; Rasdell v. Rasdell, 9 Wis. 379, a well-reasoned and valuable case; Calder v. Moran, 49 Mich. 14; Palmer v. Sterling, 41 Mich. 221; Seaman v. Cook, 14 Ill. 501; Kimbell v. Walker, 30 Ill. 489 (at pp. 510, 511); Philbrook v. Delano, 29 Me. 413; Graves v. Graves, 9 Fost. 129; Salisbury v. Clark, 61 Vt. 453.

Apparently opposed to this line of authority is Hall v. Livingstone, 3 Del. Ch. 348, which, however, is distinguishable because the statute of that state is peculiar. In the elaborate opinion, the learned chancellor cites a few cases in North Carolina and elsewhere, based on statutes similar to that of Delaware, which are in accord with him.

In England we have Pilkington v. Bayley, 7 Bell P. C. 526; Taylor v. Taylor, 1 Atk. 447; Lloyd v. Spillett, 2 Atk. 148 (at p. 150), where is found the famous classification of Lord Hardwicke of resulting trusts, which excludes a resulting trust in favor of the grantor; Young v. Peach, 2 Atk. 254 (at P. 256); Leman v. Whitley, 4 Russ. 423; 6 L. J. Ch. (N. S.) 152 (1828); Davies v. Ottey, 85 Beav. 542 ; 34 L. J. Ch. (N. S.) 252 (1865); Childers v. Childers, 3 Kay & J. 310; 3 De G. & J. 482; 36 L. J. Ch. 643 (at pp. 643, 743); 3 Jur. (N. S.) 609, 1277 (1857); Booth v. Turle, L. R. 16 Eq. Cas. 182 (1873) Haigh v. Kaye, L. R. 7 Ch. App. Cas. 469 (1872).

It must be confessed that the cases decided in England since Leman v. Whitley, above cited, are not fully, if at all, in accord with the American cases, and I cannot but think that they are departures from the ancient way.”

In Davies v. Ottey, complainant being in fear of prosecution for bigamy and of being compelled to support his first wife, conveyed his land, without consideration, to his son-in-law, “ until the annoyance of the discovery and fear of prosecution should have passed over.” In point of fact, complainant was summoned by the parish to pay for his first wife’s support, but defeated the proceedings. Lord Romilly decreed a reconveyance, on the ground that the statute of frauds did not apply; that it was a case of resulting trust and a fraud, namely, that it was not honest for the defendant to keep the land. The character of the conveyance is not stated.

Childers v. Childers was a conveyance by a father (a large landowner) to a son, to make him competent to serve as a bailiff or manager of drainage of the Great Bedford Level. The son was absent in Italy, where he died shortly after the execution of the deed, without ever having seen or heard of it. It was, however, registered. Lord Hatherley (then Sir William Page Wood) held the conveyance was for an unlawful purpose and denied relief to the grantor in a suit against the infant child and heir of the son. On appeal, and upon further evidence, the court .on appeals (Lord-Justices Knight Bruce and Turner) gave relief on the ground both of mistake in the deed and that a trust resulted.

Booth v. Turle was a case of mistake in the conveyance.

In Haigh v. Kaye, the complainant, expecting an adverse decision against him in a chancery suit, conveyed an estate by absolute conveyance, but whether with a declaration of uses does not appear, to the defendant, upon an expressed moneyed consideration, which was not paid, and- upon the express promise to reconvey. The defendant, in his answer, admitted the parol promise to reconvey, but set up and relied upon the statute of frauds. It was held that the illegal character of the conveyance did not clearly appear, and that the case was one of resulting trust, and that the statute of frauds did not apply, and further, that it was a fraud for the defendant to retain the title in the face of his parol promise.

It is possible that this decision may be supported, under the English rule, upon the ground that the defendant admitted the trust in his answer, and thus the statute was satisfied.

Rone of the judgments in these cases was delivered after consideration, but all on the spur of the moment. But there is manifest in them a disposition, on the part of the English judges, to imply a resulting trust in favor of the grantor from the mere non-payment of'the consideration money; and also to find fraud as a ground for relief in equity from a mere failure to recognize the obligation of a parol trust which the statute declares to be void. This, I think, is clearly erroneous. The fraud which entitles a party to be relieved from the effect of a deed, whether of conveyance or other contractual obligation, is fraud or covin in its ‘procuration — false representations or promises not intended at the time to be carried out, and the like. Fraud cannot be predicated on a mere failure or refusal to perform a parol promise originally made in good faith, but void under the statute of frauds. To hold otherwise is to annul the statute.

This aspect of the case is discussed with great ability by the Wisconsin court in Rasdall v. Rasdall. In that case evidence had been given, resulting in proof satisfactory to the court, that a conveyance of land had been made by the plaintiff’s intestate to the defendant, upon a parol promise to hold the property in trust for the use and benefit of the intestate and his heirs. In discussing the matter the court says: “ We do not feel called upon to cite authorities to show that, in the absence of fraud, accident or mistake, parol evidence cannot be received to prove that a deed, absolute on its face, was given in trust for the benefit of the grantor, and we have not been able to find anything in this case to make it an exception. We cannot see why, if this evidence is to be received to establish this trust, every other deed in the state may not be shown by parol to have been given upon trust and the statute of frauds be entirely annulled.” The court then states that the plaintiffs put themselves upon the ground of fraud, and proceeds:

“This presents a question of very great importance, and, in view of the authorities on the subject, of no little difficulty. There is no doubt that if any fraud had been alleged, by means of which the defendant procured the conveyance from his brother to himself, or any mistake, by which the instrument was made absolute instead of expressing the trust intended, parol evidence would have been admissible to show any fraud or mistake. * * * The only fraud alleged is that of the defendants now claiming the property in violation of the parol trust, and w'hether that constitutes such a fraud as will justify a court of equity in overturning the written contract of the parties upon parol evidence, is the question presented.
“ It cannot be denied that if the court can, by any legal means, arrive at the existence of the parol trust, then the violation of it by the defendant, in wresting their inheritance from the family of his dead brother, is most grossly fraudulent. And to avoid such injustice courts of equity have frequently seized upon the slightest circumstances connected with the procurement of the conveyance to avoid the operation of the statute of frauds. And there are cases, the principle of which would warrant the assertion that the attempt by the defendant to claim the rights which this deed, on its face, gives him, contrary to the parol trust, is such a fraud as’ would justify the relief upon parol evidence. But I confess my inability to see how, upon principle, this position can be sustained consistently with a due observance of the statute. Placing the relief in such cases upon the ground of fraud is implied by admitting that the parol evidence cannot be admitted to establish the trust, for the purpose of enforcing it, directly as a trust. And this is also expressly admitted. But it seems apparent to my mind that to say, in such a case, it shall be admitted to establish the fraud, is equally a violation of the statute, because the fraud consists only in the refusal to execute the trust.' The court, therefore, cannot say that there is a fraud without first saying that there is a trust. And the parol evidence, if admitted, must be admitted to establish the trust, in order that the court may charge the party with fraud in setting up his claim against it. Conceding, then, that they cannot execute the trust directly in such case, because it cannot be proved by parol, is it not a mere evasion of the statute to say that they will allow it to be proved by parol for the purpose of enforcing it indirectly, by charging the party with fraud for refusing to execute it? Such a course does not relieve the court from the charge of violating the statute, but subjects it to the odium of an attempted but unsuccessful evasion.
“ It may be said that fraud ought not to be tolerated. That is very true, but that is not the question. The question is whether the court, without violating the law, can get at the fraud. There is no doubt that trusts ought to be enforced, but that is not a sufficient reason for admitting parol evidence to establish them. When the party offers this, the court says no; the law forbids it.
“So, however desirable it may be to prevent fraud, if the fraud cannot be established except by first showing a trust by parol, is not the same answer equally applicable ? If not, it is difficult to see that the statute of frauds is to have any practical effect, for, although trusts and agreements contrary to the written contracts of parties cannot be proved by parol so as to be enforced as such, yet they may be proved and held of sufficient force to charge the party with fraud in not observing them. And the result is practically the same. It is for courts to say to the parties, ‘These agreements are not valid, not binding; we cannot compel you to observe them, yet if you do not observe them without being compelled, we will hold that to be a fraud on your part, and for the fraud, will compel you to execute them.’
“ It is impossible to reconcile with principle very many of the adjudications upon the statute of frauds. * * * But the distinction between fraud in procuring a conveyance and that which arises only from the refusal to execute a parol trust or agreement-, connected with a conveyance obtained without fraud, is not only clear upon principle, but is not without sanction. * * * And we must hold that, as the deed was made absolute to the defendant, without any mistake or fraud on his part, his mere refusal to perform the trust is not such a fraud as will justify the admission of parol evidence and the enforcement of the trust. The reason is that the law forbids us to be informed that there was a trust by that kind of evidence. It may and does undoubtedly work hardship in this case, and that we regret-: but if parties will, in face of the positive provisions of the statute, risk their interest upon the honor and justice of others, and the security fails them, they have no right to ask courts to violate the law to furnish relief.”'

This reasoning, as well as that which forbids the implication of a trust for the grantor of a deed to the uses of the grantee from the mere non-payment of the consideration money, does not reach either the case of the payment of the consideration money by a third person or that of a conveyance absolute made as security for a loan of money.

I conclude, then, that no trust for the grantor resulted, or can be implied, from the circumstances of this case, and that no fraud was practiced upon the defendant George, nor can any be implied against either his mother or the complainant.

It remains to see whether relief may be granted upon the second ground, viz., the intention of the parties.

In order to give relief on that ground it seems to me that the conveyance itself must be either set aside in toto or reformed. It is hardly necessary to say that, in order to set aside or reform the deed, the pleadings must be properly framed for that purpose and the proof must be clear. There should, in this case, be a cross-bill properly' framed to bring the equity before, the court. It is not too late for this defect to be supplied, and I will listen to an application for that purpose, which must be granted, if at all, upon terms of an opportunity to the complainant to answer and adduce further proofs if desired.

But as each party was allowed, subject to objection, to introduce, and apparently did introduce, all the proofs within their respective reach, I think it proper to express my views upon the effect of the evidence on an issue to be raised by amendment.

There can be no doubt that the intention of all the parties was to secure George’s share in the property for his benefit, and that he or his children, if he had any, were ultimately to have the title. The difficulty in the case is to determine for how long a time his mother was expected to hold the title; in other words, to define the terms of the trust. Neither Judge B. nor Mrs. Taylor gave any evidence upon this point, and Mr. Taylor says that she was to hold it “ for a few years.” Then we have the fact that, acting by the advice of her children and her counsel, Mrs. Lovett did decline to reconvey, and on her death-bed expressed her wish that George should continue to have the income as before.

Under these circumstances, if George, at the date of this transaction, had been a man of more mature age and of greater experience, and of the average capacity to take care of himself and to manage his own business affairs, and had acted of his own free will, with the aid of independent counsel, I should find it difficult, if not impossible, to relieve him. But such was not his condition. He was young, inexperienced, of slender intellect, and of little or no business capacity. He had no independent counsel, but acted upon the solicitation of his friends and their counsel. They were influenced in what they did by the very best motives, and the results so far have been most beneficial to George. But the question remains whether he ought, in equity, to be held bound by a deed which failed to provide for the very event which had occurred and which in the ordinary course of nature was most likely to occur, viz., the death of his mother in his lifetime, without having made any proper disposition of the property which he had conveyed to her.

Now, as .before observed, it seems to me that a provision to define George’s rights fully from the beginning might have been framed, and either inserted in the original deed or embodied in a declaration of trust, and executed by Mrs. Lovett. And it further seems to me that, under all the circumstances of the case, it was the duty of Mrs. Lovett’s counsel to have seen to it that such a provision was made, and that his failure so to do ought not. to be permitted to work a loss to George in the premises; in other words, that he ought not to be held bound by this deed, but should be relieved from its effect, either by setting it aside altogether or by a proper reformation, of it. In saying this I desire it to be expressly understood as not intending to cast any reflection upon Judge B. Mrs. Lovett was at that time evidently a woman yet in the prime of life and entirely trustworthy. The present peril of the situation demanded immediate attention and remedy. He no doubt supposed that the future would, so to speak, take care of itself. As before remarked, the results have been most, beneficial; and if relief could not now be granted to George, and he should lose one-third of the remainder of his patrimony, he would no doubt still be a great gainer by the making of the deed in question.

I will advise a decree that, upon the present pleadings and proofs, the complainant is entitled to four-ninths of the premises, and will entertain a motion on behalf of the defendant George W. Lovett to amend.


author: Reed, V. C.

text:
    Julia Magee et al. v. Catharine Bradley et al.
    1. Where a mortgage is twenty years overdue, and thereis.no proof that during that period, the mortgagor or assignee in possession has made any payment upon or otherwise recognized its existence, it is presumed to have been' paid. This presumption is not rebutted by the fact that the owner of the mortgage and the owner of the equity of redemption, during this period, were brother and sister.
    2. A presumption arises after twenty years from the accrual of the right to a legacy, that it has been paid, but the presumption may be rebutted by any credible evidence that it is still unpaid.
    On bill for partition.

      This bill is filed to obtain a partition of a tract of land, and incidentally to have adjusted the respective liens claimed by certain of the owners in common.
    The parties are the heirs of Forbes Holland, who died on the 14th day of January, 1894. There is no dispute in respect to the fact that the title to the tract was in Forbes Holland at the time of his death, nor in respect to the identity of the heirs of Forbes, nor in respect to their respective interests, apart from the liens which are claimed to exist.
    The history of the evolutions of title to this land and the way by which the alleged liens arose, is as follows:
    In 1862 these lands belonged to John Holland, the father of Forbes. There was then a mortgage upon them for the sum of $2,000, held by Eliza Boutillier. This mortgage had been executed in 1845. It was assigned by Eliza Boutillier, on the 15th of September, 1865, to Catharine Bradley, a daughter of John Holland, which assignment was recorded September 22d, 1865.
    John Holland died on the 23d day of May, 1862, leaving a will by the terms of which he devised unto his wife, Haney, absolutely, an undivided half interest in his real estate. He also devised to his wife, Haney, a life interest in the other undivided half part of his lands, the remainder in such undivided one-half interest to go to his son Forbes Holland.
    He charged upon the real estate given to Haney a legacy of $500 bequeathed to his son Edward Holland. He charged upon the remainder in the one-half interest devised to Forbes the payment of $600, for the benefit of his son Thomas Holland. The said $600 were to be invested in land to be occupied by Thomas during his life, with power to Thomas to dispose of the same by will, and in default of such disposition, the same was to go to Thomas’ heirs.
    Haney, his widow, occupied the land devised to her until 1863, when she died, leaving a will by the terms of which she devised to Forbes, her son, the undivided half of the property which she had held, absolutely. Haney also imposed certain additional charges upon the undivided half which she devised to Forbes. In the first place, she bequeathed to Daniel Coghlan, who was one of her executors with Forbes, the sura of $3,000, to be invested for Julia Magee, her daughter. She bequeathed to her daughter Diana Bradley $500, to her daughter Eliza Cavanagh $500, to her daughter Margaret Doyle the sum of $500. The last bequest was coupled with the condition that she should come into this state and personally demand the same within ten years from the decease of the testatrix. She gave to her grandson, John Donnelly, the sum of $300; she gave to her son Joseph Holland and to her daughter Catharine Bradley the sum of $5 each. All these pecuniary legacies were charged upon the real and personal estate given to Forbes, so that Forbes, after the death of Nancy, had the entire title to that land subject to charges upon it to pay legacies, which were liens as follows: Five hundred dollars first lien on an undivided half, $600 first lien on the other undivided half, then the legacies mentioned in Nancy’s will, which were liens upon an undivided half, subject to the $500 legacy to Edward Holland. With Nancy, the widow, there had lived, it seems, her daughter Julia Magee. After the death of Nancy, Forbes told Julia to remain upon the property, and gave her the privilege of doing what she chose with the proceeds.
    From 1865 down to the time of filing this bill, Julia Magee lived upon the premises in question, occasionally visited by the different relatives. From the time of the death of Nancy to the death of Forbes, affairs remained in this shape. Nothing appears to have been done in respect to the settlement of the estate, and there appears to have been practically nothing settled, as there was little or no personalty and no debts. Little appears to be in the testimony concerning any transactions in reference to the existing mortgage of $2,000, or in respect to the legacy of $3,000 to Julia Magee, or the other legacies charged upon the real estate.

      Mr. Willard W. Cutler, for the complainants.

      'Messrs. McCarter, Williamson & McCarter, for the defendants.
   Reed, V. C.

In this posture of affairs, the question raised by the pleadings is whether the -mortgage of $2,000 held by Catharine Bradley at the time of her death is a subsisting lien upon the tract, whether the legacy to Julia Magee is a subsisting lien, and if so, to what amount, and whether the other legacies charged upon the lands are subsisting liens, and if so, to what amount.

The rule is entirely settled that where a mortgagor has remained in possession without making any payments of principal or interest, or doing any other acts in recognition of the mortgage, for a period of twenty years, payment of said mortgage is presumed. 1 Jones Mort. § 915. The onus probandi, by reason of the lapse of this period of time, is thrown upon the mortgagee to prove that the instrument is still subsisting unpaid. The presumption does not act like a statutory limitation, but as a rule of evidence as well as a rule of public policy. The degree of proof required to overcome the presumption must necessarily vary with the circumstances which surround each individual case.

In Executors of Wanmaker v. Van Buskirk, Sax. 693, the circumstance that the mortgagor had married the daughter of the mortgagee and had issue; that the mortgagor had died many years before, leaving his wife and children in possession; that they were not in the situation to pay either principal or interest; that to have exacted payment might have brought distress upon them and upon those who depended on this property for support, and so would have been harsh, was deemed sufficient to rebut the presumption of payment.

In Evans v. Huffman et al., 1 Halst. Ch. 354, the chancellor cited with approval the remark of Sir William Grant in Hillary v. Waller, 12 Ves. 252: “ The presumption does not rest on the belief that the payment has actually been made, but is raised because the means of creating belief or disbelief, after such a lapse of time, are so little to be relied on.”

In this case the chancellor seems to have thought that neither the insolvency of the mortgagor nor his absence for a portion of the twenty years would rebut the presumption of payment.

In Downes v. Sooy, Jr., 1 Stew. Eq. 55, Chancellor Runyon, after again quoting the remarks of Sir William Grant, says: “ The presumption of payment, in case of a mortgage on -which nothing has been paid for twenty years, and there has been no foreclosure, and the mortgagee has had no possession of the mortgaged premises, arises from the policy of the law.” In that case he reinforces the presumption of payment.

Now, what are the elements of fact in this case to rebut the presumption of payment arising from nearly or quite thirty years’ delay to foreclose? There is no evidence of payment of any part of principal or of'the interest to rebut the presumption. It is true that Ellen Hennesy says that, in 1868, Julia Magee came to- her mother’s and paid her $100 upon the mortgage. In respect to this testimony, Julia Magee says she never knew of the existence of the mortgage until after the death of Eorbes. In addition to this evidence of Julia Magee, and the length of time that has elapsed since the event sworn to, there is the fact that there is nothing to show that Julia was authorized by Eorbes to pay any sum upon principal or interest. Eorbes, and not Julia, was the owner of the land upon which the mortgage was a lien. Besides the payment, if made, was made thirty years ago. It appears, further, that there is no endorsement of any sum of principal or interest upon the bond or mortgage. The only element of fact remaining to be considered is the kinship of the parties. It is in evidence that Catharine Bradley was well to do; therefore, it is argued that it can be inferred that she purchased and held this mortgage for the purpose of assisting Julia Magee, who, as has been already remarked, was permitted by Eorbes to have the benefit of the equity of redemption. This seems to me a very slender foundation to overturn the presumption arising from this long period of time. Eor aught that appears, Forbes was as able to pay the mortgage as his sister was to forego payment. What occurred between them during this thirty years in relation to it, what arrangements were made in regard to its payment, what understanding was entered into in respect to its enforcement, surrender or payment, can now never be known, as the mouths of both Eorbes and Catharine are closed by death. For the very reason that, by this lapse of time, all means of proof have been extinguished, as a matter of public policy the presumption of payment should be permitted to remain. In my judgment the mortgage is not a lien.

The next question is whether the liens of the legacies, charged by the will of John Holland and of Haney Holland upon portions of the estate, still exist. In respect to the matter of presumption of payment, these legacies stand upon much the same footing as the mortgage. I take it that the equitable rule is that a suit to recover a legacy will be barred by the same delay as is sufficient to prevent a recovery upon a mortgage.

It is true that there is no special statute of limitations applying to the recovery of legacies, and that the general statute does not reach such suits, because such statutes are not recognized in cases of express trusts, and executors or administrators are regarded as trustees of an express trust (Hedges v. Norris, 5 Stew. Eq. 192); yet, as in the case of mortgages, a court of equity will, in analogy to the statute of limitations, raise a presumption after the lapse of twenty years' that a legacy has been paid. Hayes v. Whitall, 2 Beas. 241.

As to what circumstances will suffice to rebut this presumption, there seems to exist some contrariety of judicial sentiment.

In Jones v. Turberville, 2 Ves. Jr. 11, A., by will, charged all his estate, generally, with the payment of debts to legatees. . A bill was filed by the second husband of a legatee after her death. Forty years had elapsed without demand. The plaintiff proved that another legacy, of ten thousand guineas was not paid, and also offered to read the evidence of some bond creditors that debts due to them had not been paid. The bill also .alleged the existence of certain infancies during the time. The court refused to entertain the suit.

In Camppell v. Graham, 1 Russ. & M. 453, the failure to bring a bill for a legacy for twenty-eight years, although the legatees had left Jamaica,- where the assets were to be administered, previous to testator’s death and never returned there, was held to bar the suit.

In Pickering v. Stamford, 2 Ves. Jr. 272, Lord Alvanly, master of the rolls, acknowledged the rule laid down in Jones v. Turberville, and said: “ I should have held that where an executor, twenty years after the death of the testator, sells leasehold estate upon which, legacies have been charged, and no demand has been made during all that time, there was evidence that the charge had been paid.”

On the other hand, in Ravenscroft v. Frisby, 1 Call 16, one Morris died in 1789. He had left his property in a state of extreme embarrassment. It was .improbable that the assets could ever be sufficient for the payment of the whole of his liabilities. Of all the property the mortgagees were in possession whose redemption must have preceded the application of the legacies to the purposes of the will.

It was held that, under these circumstances, a presumption of payment of the legacies did not arise from lapse -of over twenty years.

In my judgment, there is evidence which rebuts the presumption of payment of some of these legacies.

Julia Magee swears positively that her legacy was never paid.

John Donnelly swears with equal positiveness that his legacy was not paid.

Thomas Holland is dead, but his wife swears that he never received the benefit of the $600 which was to be raised out of the property under the terms of -his father’s will.

She married Thomas in 1860, before the death of the father of Thomas, and she still survives. It is absolutely incredible that the provisions in the father’s will could have been executed without her knowledge.

In respect to the legacies to Eliza Kavanagh and Diana Bradley, there is no evidence that they were paid or were not paid. To overcome the presumption of payment which thirty years’ delay to make a claim for their payment raises, there is nothing but the conditions which existed during this period. But it seems impossible to say that those conditions were so repugnant to probability of their payment as to overcome the -contrary presumption. Edward says he thinks his legacy was paid. It is charged in the bill and undenied in any answer that Margaret Doyle’s was paid.

How, where it is proved that some were paid and some were left unpaid, it is difficult to see how any reliable inference can be drawn as to the páyment of another legacy, concerning which there is absolutely nothing in the testimony except that the same condition of affairs existed in respect to these legatees as existed in regard to both the paid and unpaid legatees.

I am constrained to hold that the legacy to Eliza Kavanagh and the legacy to Diana Bradley are presumed to have been paid.

I will advise a decree that the property be sold; that the mortgage held by Catharine Bradley is paid; that the_legacy given to Edward Holland is paid; that the legacy for $600 given to Thomas ’Holland, with interest, is a first lien upon the proceeds of the sale of the undivided one-half interest in said lands; that the legacy of $3,000 to Julia Magee, and the legacy of $300 to John Donnelly, are liens upon the other half interest in said lands.

As the value of the land seems to be insufficient to pay the legacies to Julia Magee and John Donnelly in full, they must be paid ratably.