text:
    Henry McShane Manufacturing Company v. Emil Kolb et al.
    [Filed February 5th, 1900.]
    1. Where a bill alleges that defendant fraudulently inserted in a mortgage given to it that the money was advanced to pay purchase-money to impair the lien of complainant’s mortgage, and there is no proof of the alleged fraud, ■equity is without jurisdiction, as the bill asks only a declaration in advance of a sale under execution as to the priority of two legal liens.
    2. The instrument in question held to be a mortgage for purchase-money, and as such has priority over complainant’s judgment.
    On final hearing.

      Mr. George E. Qlymer, for the complainant.

      Mr. Howard W. Hayes, for the defendant The National Building and Loan Association.
   Stevens, V. C.

The case is this: In October, 1895, the complainant recovered judgment against the defendant Kolb, in the Essex circuit court, for $463.44. 'The execution issued was returned unsatisfied. Prior to April 1st, 1899, Kolb had entered into a contract with Fairchild, on behalf of his (Fairchild’s) wife, to build two houses for $10,300. He had received in cash, on account of his contract, $4,000. On that day he obtained the architect’s certificate for $1,661 iti addition. Fairchild, by the terms of the. contract, could have given him a four months’ note for the amount, but he proposed instead to give him a deed for a house and lot in Newark and $400 in cash. According to Fairchild’s testimony, and he was the complainant’s only witness, Kolb was not willing to take this deed unless he could obtain a loan upon the property. Fairchild told him he thought the defendant The National Building and Loan Association would lend him the money he needed. Kolb made his written application accordingly, therein stating that the money was to be borrowed to pay the purchase-money.- The association agreed to make him a loan of $1,100. The title was examined by Hayes & Lambert, and the deed from Fairchild and his wife to Kolb, and a mortgage for $1,100 from Kolb to the association, were delivered about May 18th. Both papers were recorded three days later. There is a conflict of evidence over the question whether the deed and mortgage were delivered at the same time. Mr. Frank, the managing clerk of Hayes & Lambert, who had charge of the transaction, says that they were. Mr. Fairchild says that they were not, that the deed was delivered several days before the mortgage. It is not likely, however, that Kolb would have accepted the deecl until the search was complete and until the association was prepared to lend him the money, and so I think Mr. Frank’s statement is the more probable. The money lent was, on Fairchild’s order, paid to Kolb.

On these facts it is insisted that the judgment is prior to the mortgage.

The law is well settled that a purchase-money mortgage has priority over liens outstanding against the vendee when he takes title, whether the mortgage be made to the vendor or to a third person who advances the money. New Jersey Building, Loan and Investment Co. v. Bachelor, 9 Dick. Ch. Rep. 600; Wallace v. Silsby, 13 Vr. 1. I think the principle of these decisions applies to the case at bar. The substance of the transaction was this: Fairchild (or, rather, his wife) owed Kolb $1,661. He agreed to convey to Kolb, to pay the debt, a house and lot whose price was fixed at $1,261, and $400 in cash. Kolb asked the association to lend him $1,100 to pay a part of the purchase-money. The association agreed to do so. If the. transaction had been formally consummated according to its theory, what would have been done would have been this: The association would have handed Fairchild the $1,100 to which he was entitled, as a part of the price of the land, and Fairchild would have handed this same money to Kolb, together with the deed and the additional sum of $400, in payment of the $1,661, which his wife owed him. Had this been done, there would not, under the decisions, have been the slightest ground for contending that the judgment was ahead of the mortgage. Now, it seems to me that the mere fact that the association, by Fair-child’s express, direction, gave the money, in the first instance, to Ko'lb did not substantially alter the character or legal effect of the transaction. It was carried out in the way in which one would have expected business men to carry it out. I am therefore of opinion that the bill should be dismissed on the merits.

If I had come to a different conclusion, I would still have been obliged to advise the dismissal. The bill charges that the association 'fraudulently inserted in its mortgage the statement that the money was advanced to pay purchase-money with a view to impairing the lien of complainant’s judgment, and with the sole object of fraudulently attempting to create a prior lien. There is absolutely no proof of this allegation. Fraud is here a jurisdictional fact. Without it the complainant has no standing in a court of equity) Without it, the bill asks only a declaration, in advance of a sale under the common-law execution, that of two legal liens the complainant’s, is prior. Such a declaration the court cannot make.


source: Caselaw Access Project

author: Grey, V. C.

license: Public Domain

text:
    William B. Kempton v. David H. Bartine et al.
    [Filed October 21st, 1899.]
    1. Where a bill is filed which seeks to enforce the specific performance of a contract made with a decedent testatrix, to give and devise her whole estate at her death, the executor of her will, who primarily takes the legal title to her personalty, and who has an equity to require the application of her lands to the payment of her debts (if need be), is a necessary party defendant, without whose presence the cause should not proceed.
    2. The practice in such cases is to direct the cause to stand over for a period, with an order that if within the period the necessary party be not brought in, the bill should be dismissed.
    3. Where the complainant seeks to enforce the specific performance of a contract, the benefits of which proceed wholly to other persons, the beneficiaries should be classed as complainants, or cause for making them defendants should be stated in the bill.
    4. When a devisee is made a party defendant to a bill filed to enforce the specific performance of the contract of his testatrix, he is sued in a representative capacity. ,
    5. The fact that the beneficiaries of a contract sought to be enforced in equity by specific performance are made defendants, and the parties against whom specific performance is asked are also made defendants, in the same bill, does not prevent the beneficiaries and the parties against whom fhe contract is sought to be enforced from being opposite parties. In equity, parties who are in opposition to each other are often brought into court as defendants.
    6. In ascertaining the relations of the parties to each other under the Evidence acts, the court will examine the record to ascertain whether they are in fact antagonistic, and will not be controlled by the voluntary classification of parties made by the complainant in drawing his bill.
    On bill, answer and offer of testimony, &c.
    The complainant was the brother of Meribah D. Kempton and Annie B. Kempton, his two maiden sisters. In 1894 Meribah died intestate, leaving the complainant and Annie her only heirs and next of kin, to whom all her property descended in equal shares. Meribab, at the time of her death, was seized in fee of the one-half part of a house and lot in Merchantville, New Jersey, and of-certain stocks, bonds, household furniture and other personal property. The complainant alleges that Annie, after Meribah’s death, agreed with him that if he would allow her to enjoy his share of Meribah’s estate during her life, “she (said Annie Kempton) would at her death give and devise all of the estate or property of every kind of which she should die seized and possessed to her nieces and nephews,” children of the complainant, except the house “ which she would leave ” to Cora V. Kempton, the wife of the complainant. He took out letters of administration on Meribah’s estate, and alleges that he delivered to Annie all the personalty of Meribah’s estate and that Annie, during her life, used and enjoyed the property. He claims that under this contract and its performance on his part, his wife and children acquired a vested interest in all the real and personal property whereof Annie died seized, and that she held that property in trust for his children and wife, “ to give the same at her death to them.”

    The bill recites that Annie died in March, 1897, testate, and sets out the will in full as dated February 19th, 1896, and proven in November, 1897, by the éxecutor, David II. Bartine. It alleges that Bartine had entered into possession of all of the personal property of which Annie Kempton died possessed, and was as executor carrying out the provisions of her will, and among other acts as executor, was suing the complainant upon several notes held by Annie in her lifetime, which were made by the complainant and endorsed by his wife, Cora V. Kempton, and that Bartine who was devisee of Annie’s share in the house, had taken possession of it. The bill avers that Bartine, because of the agreement of Annie with complainant, has no interest in Annie’s real estate and none in her personal, save as trustee for the complainant’s wife and children, and prays that the alleged contract between the complainant and Annie Kempton may be specifically performed aud carried into execution by the defendants; that Bartine be decreed to convey the real estate of which Annie died seized to complainant’s wife, Cora V. Kempton, and to hold the personal of which Annie died possessed as trustee for his children, and to deliver the same to them, or that an accounting be had of Meribah’s estate and the complainant’s interest therein be returned to him.
    The complainant in the bill as originally filed, prayed for answer from the legatees under Annie’s will, from his own wife, and children and from Bartine, who was devisee therein, but did not ask answer from him as executor of that will. The prayer for subpoena originally named Bartine in his individual capacity and again as David H. Bartine, executor. Bartine was served with subpoena as executor, and answered the bill in that capacity. The complainant afterwards, before the cause was set down for hearing, obtained an order to amend his bill by striking out Bartine, executor, as a defendant.
    The answer of the devisee and legatees denies the agreement between the complainant and Annie B. Kempton, and asserts title in themselves under the provisions of Annie’s will, and denies that the children and wife of the complainant have any right or title in Annie’s property. The defendant Bartine, as executor, especially answers that he has proceeded as executor of the will of Annie B. Kempton, to settle her estate. Issue has been joined.
    In this condition of the pleadings the case came on for hearing. Upon the opening of the cause the complainant called as his first witness his wife, Cora 'V. Kempton, the person who, by the alleged agreement, was to become owner of Annie B. Kemp-ton’s house. The complainant declared that by this defendant he proposed to prove the transaction between the complainant and the decedent, Annie B. Kempton, set out in the bill, and the statements made by the decedent concerning the alleged agreement. It was objected that because of the provisions of sections 3, 4 and 58 of the Evidence act, Mrs. Kempton being a party, was not competent to prove any statement by or transaction with the decedent. This objection called attention to the relation of the parties, and the complainant insisted that Bartine was not a defendant as executor of the will of Annie B. Kemp-ton and that no party was sued in a representative capacity, and therefore this was no ground for the exclusion of proof of that character. The vice-chancellor inquired of the counsel for the complainant whether the executor of Annie B. Kempton’s will was not, under the circumstances of this cause, a necessary party without whose presence the court ought not to proceed to hearing and invited argument upon the point.

      Mr.'Martin V. Bergen, Jr., and Mr. Martin V. Bergen, for the complainant.

      Mr. Howard Qarrow and Mr. David J. Paneoast, for the defendant Bartine and others.
   Grey, V. C.

The complainant’s counsel contend that the executor of Annie B. Kempton’s will is not such a necessary party that the cause should be stayed until he be brought in. They argue that the effect of the agreement set out in the bill was to vest immediate legal title in all Annie B. Kempton’s personal and real property in the wife and children 'of the complainant, subject to Annie’s enjoyment of it for her life, and that upon her death they became entitled to instant possession of both, and that her executor never received any title to the personal or interest in the realty, and therefore need not be a party, and in support of that position cite Hodge v. Coriell, 15 Vr. 456, and on error, 17 Vr. 354. If this contention be correct, there would seem to be no occasion for the complainant to ask for relief in equity, because those for whose benefit he made the agreement and for whom the present suit is brought, must in such case be now in the enjoyment of a full legal title to the property which, as to the personalty, is presently recoverable at law in an action of replevin, and as to the real estate, in ejectment. That was the nature of the plaintiff’s claim in Hodge v. Coriell, where he asserted a legal title and sued the defendant individually for the recovering of personalty, and it was held that the defendant’s plea that he took the property in his character as administrator, did not alter- his position as a party to the record so as to make the suit against him in his representative capacity. This adjudication was governed by the rigid rules of the law courts which pass upon the rights of the parties to the record, irrespective of the interests of the other persons in the matter in controversy.

The complainant’s present contention that the effect of his. alleged agreement with his sister Annie was to vest instantly a legal title to the beneficiaries under it, is in manifest contradiction to his statements of that contract in his bill, above quoted in italics. These show that the alleged agreement did not pass a legal title to either the personalty or the realty in question. The complainant avers that his sister Annie agreed that she would at her death give and devise all the property, &c. She did not at the making of the agreement give or devise, she only agreed that she would at her death do so. There was by her no delivery of the personalty and no conveyance of the real estate. At the time of her death she held the legal title to both the personal and the real estate. If her agreement was forceful, it did indeed pass an equitable estate to the beneficiaries, but on the complainant’s own showing no legal estate passed. When Annie died her executor took a legal estate in all her personalty for purposes of administration, primarily for payment of her debts. He also had, as executor, an equity to have her lands applied for the same purpose. All that the complainant and those claiming under the executory agreement took was the right to have it established and enforced. It is because of the fact that the legal estate of Annie did not pass by her alleged contract that the complainant prays by his bill for its specific performance. A decree for the complainant, to be effectual, must take from the executor his legal title to the personalty and prevent him from using it to pay debts or legacies. The decree sought will also deprive him of his equitable right and duty to have the real estate applied to the payment of debts, if need be. In Downing v. Risley, 2 McCart. 93, the heirs-at-law of a deceased vendee, by parol contract, sought to compel a conveyance to them by a purchaser from the vendor, who had notice of the parol contract. They omitted to make the administrator of the deceased vendee a party, and Chancellor Green, without demurrer and on ex parte hearing, declared ex mere motu that the administrator had an interest, not only because he might have to pay the purchase-money if the contract was established, but also in behalf of the creditors of the deceased vendee, for whom he had an equity in. the real estate of his intestate, and that he should be made a party. In Colfax v. Colfax, 5 Stew. Eq. 206, it was proposed to strike out the administrator of a deceased covenantor to convey lands as a defendant, but Chancellor Runyon held that bé was a proper party, since the lands of the decedent might be necessary to pay debts, and the administrator had an equitable, right to apply them, and should be heard before decree. In the case in. hand, it is alleged that the consideration for the conveyance sought to be enforced was paid in full to Annie.B. Kemp-ton in her lifetime, but .there is no answer to the suggestion that her executor is a proper party — first, because he is the holder of the legal estate in the personalty of which Annie died possessed, and secondly, because he has an equity to apply her real estate in payment of her debts. Both these interests are immediate and unrepresented by any other defendant, and must be heard before decree. The defendant Bartine is already a party in his capacity as devisee. He is within the jurisdiction and may readily be made a party as executor of Annie B. Kempton.

There is a wide difference between the mode of procedure at law and in equity touching the bringing in of parties to a suit. At law, save in a very few instances, the defendants who are called upon to respond are selected by the plaintiffs in the suit, and the court accepts the record as thus made up; but in equity, if it appears that there is a person, not in court, who holds an outstanding interest, the court will stand the cause over until the bringing iu of that party. In equity, every person interested in sustaining or defeating the object of the suit should be a party and be heard before decree. 9 Story Eq. Jur. § 1526. The spirit of the procedure in equity is to settle once and for all in one suit all disputes concerning the object of the litigation. Lord Hardwicke, in Jones v. Jones, 3 Atk. 110, directed a cause to stand over until the proper parties defendant were brought in, though the objection was admittedly (so far as the defendant was concerned) taken too late, on the ground that the court could not do justice without the presence of the absent parties who appeared to have an interest in the object of the suit. Sir John Leach, in Farquhar v. Seton, declared that where the defect of parties is apparent on the record, the court will take the' objection, though the defendant does not, for on appeal, if there be a defect of parties, the court of appeals will send the case back. Calv. Part. *116, note 3. This course was followed in this state in Merritt v. Merritt, several times reported, 16 Stew. Eq. 11, 3 Dick. Ch. Rep. 1, 6 Dick. Ch. Rep. 638. The first hearing was in this court on demurrer, one of the grounds of which was the absence of a proper party. This demurrer was overruled and no appeal taken. The cause afterwards came to hearing and decree upon its merits. On appeal from this decree on the merits,.the court of appeals, on the first presentation of the cause, was of opinion that the party whose omission from the record caused the demurrer, must be made a defendant, and refused to hear argument, and sent the cause back to the court of chancery to have the absent party brought in. The necessary amendment was made in this court, the party was brought in and the cause was returned to the court of appeals with the additional party defendant, and on the hearing the decree was affirmed. This action of the court of appeals is not indicated by any of the reports of the case, but will appear upon an examination of the files.

One point made in the complainant’s brief is somewhat surprising. It is contended that “Bartine is before the court for any decree which may be made against him, either individually or as executor.” In support of this contention, cases are cited to the effect that where the bill sets forth facts which make the defendant liable as executor, it is useless form to require that either party should be so styled in the commencement or conclusion of the bill. Such an argument necessarily assumes that the order of this court, duly made in this cause upon the application of the complainant, striking Bartine, as executor, from the bill as a defendant, is nugatory. Can it be that he is a defendant as executor so far as it may be necessary to take from him by decree the property which he is alleged to be administering, but is not a defendant, as executor, to make a defence and have the privileges which, in that capacity belong to him ? It is not necessary to.discuss the principle of pleading involved in the cases cited, for it certaiuly cannot apply to make an executor liable as a defendant when he has, by an order in due form, been stricken from the record as a defendant in that capacity. If this principle is hereafter to be invoked in this cause, to broaden the effect of a decree if favorable to the complainant, it is but equitable that the complainant should now formally máke the executor a defendant as such, that he may, on the hearing, assert his rights in setting up his defence.

The argument advanced by the complainant that Bartine is not a necessary party in his capacity as executor because the effect of the agreement was to divest the testatrix of all title in the property, and that she therefore left nothing of which her executor could become possessed, is also untenable because it assumes as an established fact the very matter put in issue and not yet heard, namely, that there was such an agreement and that it was instantly effectual to strip Annie B. Kempton of everything save a life estate in her property. In the present position of the case it is denied that there was any such agreement. The burden is upon the complainant to prove his allegation that there was such a lawful contract made by Annie B. Kempton in her lifetime. In order properly to controvert that claim, her executor, who, under her will, is in actual possession of her property, who has, primarily, the right to apply it in payment of her debts, and who alone can protect the rights of her creditors, must be a party defendant in the cause.

Several cases are cited by the complainant’s counsel to support their argument that the executor of a decedent who has made such a contract to convey, receives no title upon the death of the decedent, but they do not meet this point under consideration. Van Duyne v. Vreeland, 1 Beas. 142, upon which the bill in this cause appears to have been framed, does not raise the question now under consideration. The agreement was .there sought to be enforced in the lifetime of the alleged vendor of the property, against him and his alleged fraudulent grantee. There was no occasion to make his executor a party, for the testator was alive to make his own defence. In Davison v. Davison, 2 Beas. 246, and in Pflugar v. Pultz, 16 Stew. Eq. 440, the bills for relief were a.lso filed in the lifetime of the vendor. In Kastell v. Hillman, 8 Dick. Ch. Rep. 49, the bill was filed against voluntary grantees of the vendor. In none was the status of an executor of the vendor discussed.

The practice, in cases where a necessary party without whose presence a decree cannot be pronounced is omitted from the record, is to direct the cause to stand over for a period in order that he may be brought in, and that if this be not done within the period named the bill be dismissed. Calv. Part. *116; 1 Dan. Ch. Pr. *287, note 2 (6th Am. ed.), and cases there cited.

I will advise the making of such an order.

The objection taken to the giving, by Mrs. Cora ~V. Kempton, of any testimony as to any transaction with or statement by the decedent, Annie B. Kempton, has also been argued by counsel for both parties, and may as well be decided at this stage of the proceedings.

The defendants contend that the legatees and devisees under the will in this cause are sued in a representative capacity, and that this, under the third and fourth sections of the Evidence act (were they now in force and not modified), would preclude any party to the suit from being sworn, unless the representative was first called as a witness in his own behalf; that the act of 1880 (section 53) only modifies the operation of the previous prohibition so as to admit the party other than the representative to be sworn without any previous calling of the representative on his own behalf, but that the other party when so sworn is not, by the act of 1880, authorized to testify as to any transaction with or statement by the decedent represented in the cause.

The complainant insists that none of the defendants are sued in a representative capacity, and also that even if the' legatees and devisees are representatives of the decedent testator,; yet Mrs. Kempton, the witness on the stand, is with them a co-defendant and not an opposite party, to whom only, as they contend, the prohibition extends.

In the present situation of this cause Mrs. Cora ~V. Kempton is the first witness called, and it is therefore indisputable that she is not qualified in any way by the previous calling of the representative, so that this point need not be discussed.

Are the defendants sued in a representative capacity ?

The suit is brought to enforce the specific performance of a contract made with the decedent in her lifetime. It is alleged in the bill that Miss Kempton agreed that at her death she would devise her land to Mrs. Kempton, the complainant’s wife, the witness now on the stand, and give her personalty to the complainant’s children. Instead, she, by her will, devised her land to the defendant Bartine, and gave her personalty to legatees, of whom the complainant’s children were but a part.

The legal title to the property in question remained, as the complainant states the contract, in Miss Annie B. Kempton. During her lifetime the complainant alleges he fully performed his part of the agreement. He had no sufficient evidence of the contract, and might in her lifetime have filed his bill against her for a decree declaring and establishing it, so that at her death her property would pass as they had agreed it should, as was done in Van Duyn v. Vreeland and other cases above cited. The complainant brought no such suit in the lifetime of the decedent. At her death, by the operation of her will, the legal title to the property passed to her devisee and legatees, and the complainant now seeks by this suit to establish and enforce against her devisee and legatees the contract of the testatrix by compelling them to perform it. They are invited into court to admit or deny, not an agreement of their own but an agreement of the decedent. They are sued because they represent her ownership of the legal title of the property in dispute affected by her agreement, and for no other reason. If she were alive not one of them could be made a party defendant. They stand for and represent the defence she might have made. They must be held to be sued in a representative capacity. This ruling stands, with the holding of this court in Colfax v. Colfax, 5 Stew. Eq. 906, where the bill was filed, as in this case, to enforce the specific performance of the contract of a decedent. The defendants were the heirs-at-law. It was held that if the claim is by or against the heir as such, he sues or is sued in a representative capacity within the meaning of the law. The learned Vice-Chancellor Van Fleet, in Crimmins v. Crimmins, 16 Stew. Eq. 88, was of opinion that the act of 1880, as interpreted by the case of Hodge v. Coriell, 15 Vr. 456, and 17 Vr. 354, had so limited the meaning of the word representative ” as to exclude heirs from the classification, and had thus overthrown the case of Colfax v. Colfax as a precedent. Hodge v. Coriell determined that when a plaintiff brought suit against a defendant without, on the record, calling upon him to respond in a representative capacity, the defendant could not, by so responding in his plea, put himself in the category of one who was sued in a representative capacity. It was there held that it was not enough that he was interested in the subject of the litigation as the representative of the decedent. He must be sued in the capacity in which he represents the decedent. The plaintiff’s object in the suit must, by the record, appear to be to enforce some right against the defendant as a representative of the decedent.

In that case nothing appeared in "the record which showed that the plaintiff had sued the defendant in a representative capacity to enforce any right arising out of a transaction with the decedent. It is a different matter when a complainant alleges, as in this case, that he is entitled to have decreed the specific performance of an executory contract made with a decedent, and calls the heir or devisee of the decedent into court to respond to that allegation. The complainant here sues the heir or devisee to establish and enforce the contract of his ancestor or testator, and the defendant must respond and defend in the right of the decedent. The defendant in such a case is brought into court not in his own right, but as representing his testator, whose contract is alleged and is in the suit sought to be established. Having been by the complainant invited to respond in a representative capacity, the disabilities in giving testimony which the statutes impose apply. This view' is, I think, not only within the spirit of the legislation in question, which is intended to prevent one having a claim against the decedent’s estate, arising under some transaction with the decedent, from “swearing it through” by the uninvited tender of his own oath in proof of it, but is also within the fair construction of the words of the statutes in question. In Joss v. Mohn, 26 Vr. 407, the late Chief-Justice Beasley and Mr. Justice Dixon (who joined in the opinion of Hodge v. Cornell) concurred in the declaration that in an action against devisees to recover money loaned to their testator, the devisees are representatives of the deceased testator, and the plaintiff is incompetent to testify as to any transaction with or statement by the testator. Irrespective of previous conflicting declaration this adjudication has been accepted in this court as expository of the law, in a suit brought by one claiming the specific performance of a contract of sale made by a decedent against her heirs-at-law, who were held in such a suit to be representatives of the decedent. Greenwood v. Henry, 7 Dick. Ch. Rep. 448.

If there be any question whether, under the decisions construing the evidence statutes, legatees and devisees are representative parties where the suit is based upon rights which are alleged to have arisen under the contract of their testator, there can be no doubt that an executor, when sued as such to enforce his testator’s contract, is a representative party. On this all the decisions agree. On the point whether Mrs. Kempton shall be permitted to testify as to a transaction with or statement by the decedent whom Bartine represents as executor, the question must be considered as if the .executor had been brought in as a party defendant under the ruling above given. This being the situation of the case, there can be no doubt that one at least of the parties is sued in a representative capacity.

There remain's the question whether Mrs. Oora V. Kempton, who, under the contract set out in the bill, is the beneficiary entitled to the decedent’s real estate, and who is made a party defendant solely for that reason, may, in a suit against a representative of the decedent to enforce that contract, give testimony as to transactions with the decedent in support of the complainant’s case. It is claimed that she may do so, because her status in the suit is that of a co-defendant and that she is not an opposite party to the representative, Mrs. Kempton is a parly to the suit.

The devisee and legatee of the decedent, Annie B. Kempton, are in this suit parties who are sued in a representative capacity. The executor must be deemed to be such a party. The third section of the Evidence act declares “that no party shall be sworn in any case when * * * either of the parties sue or are sued in a representative capacity,” except the representative be called as a witness in his own behalf and be admitted, &c. The exception had no-application in this case, as Mrs. Kempton is the first witness called on either side. The words of the third section appear to prohibit Mrs. Kempton from being sworn. The fifty-third section (Gen. Stat. p. 1407) removes the prohibition against her being sworn, but does not authorize her to testify to any transaction with or statement by the decedent who is represented in the suit. To enable her to do this, the representative of the decedent must first have been called in his own behalf and have testified to some transaction with or statement by the decedent. McCartin v. MeCartin, 18 Stew. Eq. 265.

The defendants contend that Mrs. Kempton may testify as to transactions with the decedent because she is not an opposite party to the representative. But the whole frame of the bill shows that she is an opposite party. It is filed in her own and her children’s interest to declare and enforce the decedent’s contract, and to take away the decedent’s whole estate from the other defendants who represent the decedent» There is no other object in the suit. Mrs. Kempton and the representatives of the decedent are in the most precisely-defined antagonism to each other. The complainant and his wife and children unitedly claim under the alleged contract and assert its validity; the-legatees and devisee of the decedent unitedly claim under the-will and deny the validity of the contract. The success of either must result in the total defeat of the other. The opposition could not be more complete.

Mrs. Kempton and the children of the complainant are, it is trae, by him placed in the bill with the representatives as defendants. But such a voluntary classification by the complainant cannot alter the fact that they are opposite parties. In equity parties who are not in privity and whose interests in the suit are in opposition to each other are frequently brought in as defendants. The statute in stating the prohibition did not declare that no complainant should be sworn unless the representative defendant were first sworn; it puts the prohibition upon the ground that the parties are opposite, and should in equity be held to refer to their opposition in fact and not in classification.

Generally speaking, all persons having the same interest should stand on the same side in a suit, and if one identified in interest with the complainant is made a defendant, the bill should charge that he refused to join as complainant. Calv. Part. *11, note 3. There is no such charge in the bill in this case. The complainant, however, prays no relief against Mrs. Kempton or against any of her children, nor does the bill show any ground for discovery from them. No reason appears for making them defendants rather than complainant, and it may, without violent presumption, be believed that Mrs. Kempton was put in as a defendant rather than a complainant, in anticipation of the present situation, in order that she might with more plausibility be called as a witness to support the complainant’s claim.

Equity regards the essential truth and not the form or color of the matter presented, and will not, because its practice permits the association of opposing parties as defendants, declare them not to be opposite parties and deprive them of rights to which as opposite parties they may be entitled.

In equity mere association of parties has not been allowed to prevent the consideration and determination of the opposing equities of parties classed on the same side. Decrees have been pronounced in favor of some of the complainants against the defendants and another of the complainants, where it appeared the relation of the parties to the proofs called for such decrees. Rafferty v. King, 1 Keen 619. It is common practice to grant & decree whereby the rights of one defendant are held to be superior to those of another defendant, as in foreclosure and other .-suits where the order of priority of liens is declared. In inter-pleader cases the defendants are brought into court, and jurisdiction is assumed over them because they hold opposing claims, hostile to each other, between which the complainant cannot •safely himself decide. These cases go to show that in equity ¡the classification by name as defendants does not prevent those -within that classification from being opposing parties.

The case under consideration is of itself an example. The contract, as alleged, was made solely between the complainant and the decedent, but all the benefits were to come to his wife .and children. They should have been made complainants had ¡the parties been properly classified. Had this been done they, •without doubt, could not, because of the prohibition of the statute, have testified to prove the contract with the decedent now sought to be enforced. It is now claimed that the mere vol•untary classification by the complainant of these beneficiaries as •defendants maltes them competent to testify within the prohibited range. This is not the purpose or spirit of the legislation ■on the subject. The court of appeals, in a matter involving, as does this case, the competency of testimony, declared that it is the province of the court to so control the conduct of- a cause .and regulate its practice that no unfair advantage is taken by either side in presenting the merits for decision.” Walker v. Hill’s Executor, 7 C. E. Gr. 518. In Smith v. Burnet, 7 Stew. Eq. 219, the account of an executor was excepted to because he 'had omitted to charge himself with certain items of the estate. He was himself the representative, and he went on the stand .as a witness to support his claim that transactions between him and the testator justified his omission of the items. The words •of the statute nowhere prohibit a representative from tendering himself as a witness to the fullest extent. But the prerogative •court held that the executor in this case, seeking to show his ■dealings with the decedent in his lifetime, was not called by any party interested in the account within the meaning of the act of 1880, and that he was not competent to testify as to any transaction with or statement of the testator. This view was affirmed-on appeal, and the court of appeals declared that “in enforcing the object of the statute courts will look at the substance of the cause and observe,' through the forms of procedure, who are the real parties whose interests are antagonistic, and then will see-that when one is put at a disadvantage by death the other shall-not be permitted to profit by the misfortune of his adversary.” Smith v. Burnet, 8 Stew. Eq. 321.

To permit the witness on the stand to testify to transactions-with the decedent solely because the complainant calls her a defendant would be to take from the decedent’s representatives one of their greatest safeguards and to deprive them of a substantial right.


text:
    Alfred Cramer v. James Mooney.
    [Filed November 22d, 1899.]
    1. A contract for sale of lands, though signed only by the vendor-, will not-be held to be unilateral on the contention of the assignee of the vendee, when it appears that the vendee has transferred all his right to his assignee, and' that the assignee has been accepted by the vendor as the purchaser, has paid-nine-tenths of the purchase-money, has entered into possession of the lands and rented them, has tendered a small balance of the purchase-money, and demanded the clearing of the title and the delivery of a deed, his right to-which was admitted by the Vendor.
    2. Such acts of part performance are sufficient to establish a mutual contract" between the vendor and the assignee.
    3. ’ When time of performance is not specified by the contract of sale, and the parties arrange for the removal of an encumbrance prior to performance, without naming a specific day, the removal within a reasonable time is a sufficient performance.
    4. If, after such an arrangement, one of the parties claims that a subsequent' agreement fixed a specific day for performance, the party so asserting the new-' arrangement must carry the burden of proving it.

      On bill, answer and proofs.
    The complainant files this bill against James Mooney, the ■assignee of a contract for the sale of two lots of land in Stockton township, in Camden county, to compel specific performance of •the contract, by a decree that' the defendant accept 'a deed and pay the balance of the purchase-money, and that he be restrained from prosecuting his suit to recover the portion which he has .already paid.
    The agreement is in the' words and figurés following :

      “ This Agreement made the .first day of April, in the year of our Lord one -thousand eight hundred and ninety (1890), witnesses, That Alfred Cramer, has sold unto John M. Labbree, a piece of ground situate on the North side' •of Adams Ave., in the town of North Cramer Hill, County of Camden, and State of New Jersey, being lots Nos. Fourteen (14) and Fifteen (15) as laid ■out and numbered in Block 0 on a plan of the said town (a copy of which said plan is on file in the office of the Register of Deeds of the County of Camden), for the sum of one thousand dollars ($1,000) to be paid by monthly installments of not less than Fifteen dollars per month, with lawful interest after ■six and one-half months from this date, the entire sum to be due in Forty ■months from this date. The above named lots extend from the North line of Adams Avenue two hundred (200) feet in depth to the South line of Delaware Avenue. It is expressly understood by and between the parties to this agreement that no building shall be erected on the above described premises that -shall cost less than two thousand dollars: Alfred Cramer, by B. C. Rudderow, Atty. 1890, April 1st, Received to this date seventy dollars, Alfred Cramer, ,by B. C. Rudderow, Atty.
    1890. Jun 30. Received Fifteen dollars,
    Alfred Cramer, by B. C. Rudderow, Atty.
    July 29th.“ Fifty dollars,
    Alfred Cramer, by B. C. Rudderow, Atty. 1890. Oct. 21st. Received Fifty dollars,
    Alfred Cramer, by B. C. Rudderow, Atty.
    1891. Feby. 3.“ Fifty dollars,
    Alfred Cramer, by B. C. Rudderow, Atty.
    1891. June 18“ Fifty dollars,
    Alfred Cramer, by B. C. Rudderow, Atty.

      Nov. 10." Fifty dollars,
    Alfred Cramer, by B. C. Rudderow, Atty.
    “ Fifty dollars, 1892. Jany. 15.
    Alfred Cramer, by B. C. Rudderow, Atty.
    June 15.“ Fifty dollars,
    Alfred Cramer, by B. C. Rudderow, Atty.

      1892. Oct. 24. Received Fifty dollars,
    Alfred Cramer, by B. C. Rudderow, Atty.
    1893. June 7. “ Fifty dollars,
    Alfred Cramer, by B. C. Rudderow, Atty.
    1894. Jany. 16. “ Fifty dollars,
    Alfred Cramer, by B. C. Rudderow, Atty.
    “ August 27. “ Fifty dollars,
    Alfred Cramer, by B. C. Rudderow, Atty.
    1895. May 23. “ Fifty dollars,
    Alfred Cramer, by B. C. Rudderow, Atty.
    “ Nov. 29. “ Three hundred and fifteen dollars,
    ■ Alfred Cramer, by B. C. Rudderow, Atty.
    “ Cramer Hile, July 15, 1890.
    “For value received I do hereby transfer all my rights, title and interest-of this within agreement to James Mooney.
    “John M. Labbree.”
    A copy of this agreement was delivered to Labbree, who at once began to pay the installments of the purchase-money. By July 15th, 1890, he had paid $85 on account, and on that date-he assigned his interest in the contract to the defendant, James-Mooney, who accepted the transfer, and thereafter continued to-pay various installments of the purchase-money until the last payment on November 29th, 1895, by which time he had paid $915, making the total of the payments by both Labbree and Mooney to be $1,000. These payments appear to have been made generally on account of the purchase-money, and were-none of them at the time of payment specifically applied to the satisfaction of either the interest or the principal of the purchase-price referred to in the agreement.
    The complainant alleges that Mooney took possession of the lots in question and received the rents of the property, and that he still has possession. Mooney denies this, and alleges that the-land is unimproved, unenclosed building lots, and that he had not placed any improvement thereon. The proofs show, substantially without dispute, that Mooney collected rents from his-tenant in possession of the premises for several years, the latest-in October, 1896. The defendant- is, in fact, in possession of" the premises by his tenant.

      The bill further states that the complainant had preeedently to the contract of sale made a mortgage for $9,000 upon a large tract of land adjacent to the two lots in question, and that by the description in the mortgage it overlaid about thirty-five feet of the rear end of those lots • that on October 24th, 1896, the defendant offered to pay'the balance of the purchase-money due at that time, but refused to accept a deed until the portion of the lots covered by the mortgage was released from its lien, and that thereupon the complainant assured him that he would obtain such a release or refund the purchase-money. The answer admits this offer, and that the defendant
    “refused to pay said money and accept said deed unless a release was obtained by the said complainant, and thereupon said complainant offered or promised to obtain said release at once, or otherwise to return the purchase-money.”
    The substance of the” dispute in this cause is found in the differences of the parties touching the action of the complainant in obtaining the release in question under his agreement to secure that release. It is admitted by the answer that the complainant proffered himself ready to obtain this release, and that the defendant accepted this offer. The answer says the complainant promised to obtain the release “ at once,” but the proofs show that in the arrangement of the complainant with Mr. Hoosey, acting for the defendant, he did not agree to get the release at any definite time. There is really no dispute that before counsel was employed, the parties had agreed that the complainant should obtain the release, and that the deed should then be delivered without naming any specific day for the delivery. Nor is there any denial that under this arrangement the complainant proceeded to obtain and finally secured the release. Nor that he has invited the defendant to accept the delivery of the deed and release and to pay the balance of the purchase-money. The point of contention lies in the allegation of the defendant that after the arrangement to secure the release, &c., and thus perform the contract, the complainant, at interviews with the defendant's counsel, admitted his inability to carry out his contract and agreed to obtain the release, &e., by the 27th day of Novemfoef, or -to refund the purchase-money paid. ' The complainant Strenuously denies that he ever admitted that he could not carry out the contract and that he made any agreement to refund as stated, insisting that he never agreed to get the release by any specified day; that though unavoidably delayed several weeks in Securing it, he always expected to get it, and was continuously Seeking to procure it; that the only refunding talked of was in case he should be unable, to get the release.'
    ■ The testimony sustaining the defendant’s contention on this ’ point, is solely t-hat of the defendant’s counsel.' A memorandum of the amount due, if there was a refunding shown by the complainant to defendant’s counsel, is submitted as supporting the claim that a refunding was promised. The complainant admits that he did show such a memorandum, but declared that.he exhibited this and also a certified check to assure the counsel that he was acting in good faith, and was able if lie failed to get the release, to return the money. These incidents took place while the complainant was seeking to obtain the release, and during tlie period when his inability to secure an interview with the holder of the mortgage prevented the completion of the contract.
    ■ The defendant, on November 24th, 1896, while the complainant was yet seeking to obtain the release under the arrangement made between them, but before he secured it, brought suit for the recovery of the portion of the purchase-money paid. On December' 15th, 1896, the complainant, who had obtained the $9,000 mortgage to be assigued to a friendly holder, procured the portion of the lots in question which the mortgage covered to be released, and on December '21st, 1896, sent a letter by mail to the defendant, notifying him that the deed was ready for delivery at his lawyer’s office. In the early part of March, 1897, the complainant personally tendered to the defendant a deed for the lots.
    The defendant accepted none of these offers to carry out the contract of 'sale and persisted in the prosecution of his'suit, and on the 18th day of March, 1897, the complainant filed -his bill in this cause to restrain the prosecution of the defendant’s suit and to enforce performance of the contract

      ■ Mr. Martin V. Bergen, Jr:, and Mr. Martin V. Bergen, for the •complainant.
    ■ Mr. Thomas B. Harned, for the defendant.
   Grey, V. C.

The first point taken by the defendant is his contention that ■the contract of sale is a unilateral agreement, which the defendant may, if he desires, enforce against the complainant, but which-■the complainant may not compel the defendant to observe.

Whatever might have been the construction-of the contract standing barely upon its expressed terms, the subsequent circumstances and the dealings of the parties with the subject have established a mutual contract for the sale and purchase of the lots in question. By the terms of the written contract the complainant who signed it declared that he had sold the lot to Labbree, naming no date for the delivery of the deed. Labbree, who had not signed it, began at once to make payments on •account of the purchase-money. When the assignment to the defendant, Mooney, was made, he was accepted by the complainant as the purchaser in the place of Labbree. The defendant continued these payments for some four years until he had paid $915. With complainant’s assent, the defendant took possession of the lots agreed to be sold and dealt with them as his own. .He tendered the balance of the purchase-money, and- demanded •a deed from the complainant, who admitted that the defendant ■was the purchaser, and both then agreed that the complainant should obtain a release of the premises from the mortgage and should then deliver the deed to the defendant or to his ■appointee.

These dealings of the defendant with the complainant touching the premises in question have also taken this case out of the •class where a contract of sale is sought to be enforced' by the vendor against á mere assignee' having no contract with the vendor and not in privity with him. The defendant has not •only paid to the vendor complainant the greater part of the purchase-money, but has actually entered into possession of the premises, and tendered the balance of the agreed price and demanded a deed and the clearing of the title, and the complainant has accepted him as the purchaser and tendered him a deed and now files his bill to enforce payment. These acts of part performance are sufficient to establish a contract between the complainant and defendant which would be enforced in equity,, even if entirely by parol. Green v. Richards, 8 C. E. Gr. 33 ; affirmed on appeal, 8 C. E. Gr. 537.

The demand by the defendant for his deed under the agreement was in and of itself an affirmation by him of that agreement as binding upon him. McTague v. Sea Isle City Building Association, 28 Vr. 429.

The defendant further insists that complainant failed to perform or tender timely performance. This is put upon two grounds — -first, that there was no such prompt action by the-complainant in completing the contract as was due from him and secondly, that there was a special agreement made between defendant’s counsel and the complainant naming a specific day for performance, with which the complainant failed to comply.

In this state time is not held to be of the essence of an agreement to convey lands, unless the parties have expressly so stipulated, or it follows by necessary implication from the nature of the transaction. Dynan v. McCulloch, 1 Dick. Ch. Rep, 14; affirmed on appeal, 1 Dick. Ch. Rep. 608.

In the original written contract in this case no time is fixed for the delivery of a deed. By fair intendment it is deliverable-upon the final payment of the purchase-money. So far as the element of time is concerned, it appears to have been laid aside-in this matter. The contract called for payment by monthly installments. Sometimes these were anticipated, sometimes long overdue. The contract called for payment of interest on unpaid purchase-money. No interest was paid at any time. In November, 1895, $190 of purchase-money is admitted to have-become due, but neither payment nor tender was made until October, 1896. Nothing either in the nature of the property dealt with, or in the declared objects of the parties, indicated an intent to make the time of performance an essential element,. either of the original contract or of the subsequent agreement whereby the defendant was accepted as purchaser, let into possession, and partial payments were accepted from him. The complainant had no other duty as to performance than to deliver a deed with a clear title when the defendant should pay Or tender the last of the purchase-money. There is no showing of any attempt to make such final payment, until the latter part of October, 1896, after a year’s delay since the last payment.

The special agreement set up by the defendant fixing a named day for the performance of the refunding of the purchase-money, may be better understood upon examining the arrangements made by the parties as to the performance of the contract, prior to the time when this special agreement is alleged to have been made. The defendant, in the fall of 1896, concluded to complete the contract by paying the $190 yet due. He saw the complainant’s agent, and also sent his friend, Mr. Hoosey, to' see the agent for that purpose. When the agent was asked if the lot was clear, he stated the facts as to the lien of the blanket mortgage. The defendant testified that they made up their minds that they would not take the deed and pay the balance of the purchase-money until the lot was clear. Mr. Hoosey, who called on the complainant’s agent at the defendant’s instance, testifies that the complainant’s agent declared that he would get a release of the lot from the lien'of the mortgage; that the agent did not fix anytime, but said he “would get it soon.” “He didn’t give no definite time in regard to when it could be cleared.” The parties appear to have accepted this situation, and to have waited for a time for the complainant to get the release, and, becoming impatient, Mr. Mooney, early in November, 1896, employed counsel.

The rule regarding the rescission of a contract for sale of lands, because of the discovery of an unknown outstanding mortgage upon the premises, has been declared by the court of appeals in affirming Oakey v. Cook, 14. Stew. Eq. 352. The time to rescind the contract was at once that the existence of the mortgage was discovered. None of the parties desired at that time to rescind the contract because of the mortgage. Theundis.puted testiniony in this case'shows'that the mortgage covered but a small fraction of the lot, one thousandth part is the quantity named. It is common practice to clear the title at the time of performance, though’ it’ may not be clear when the contract is made. No reason appeared why a release could not’be had and the contract for sale carried out, and the parties'accépted this mode ■of settlement. The complainant under this arrangement began his efforts to secure the release. As nearly as the proofs show, this was in the last week of October, 1896. Up to this time, though nil the facts were known, there appears to have been neither ■thought nor suggestion that there was any fraudulent act or purpose on the part of the complainant in the transaction. ■ Nor .•does any of the testimony indicate that the complainant at any time acted with a fraudulent intent. He testified that he always .supposed there would be no difficulty in obtaining a release of the lots from the lien of the blanket mortgage, and considering the almost infinitesimal extent of its lien, he appears to have been justified in that belief. The complainant; however, when he set about securing the release, did find trouble in procuring it. There was delay in getting'access to the holder of the mortgage because of his sickness and afterwards an indisposition on his part to discharge the lots. These reasons interfered with the .■success of the complainant in his efforts to procure the release. A period of several weeks intérvened, during which the complainant was constantly endeavoring to obtain the release of the •corner of the lot from the lien of the blanket mortgage, under the arrangement above stated. This plan did not name any ■specific day when the lot could be cleared and the deed delivered, and compliance within a reasonable period would have satisfied the terms of the arrangement.

■' Mere delay in the performance of this contract (where the acts ■of the parties show that the contract could be satisfied in all its terms by performance within a reasonable time) did not of itself entitle the defendant to rescind the contract. The court of appeals, in a case somewhat like this, refused to support an action brought to recover the purchase-money, McTague v. Sea Isle City Building Association, 28 Vr. 428.

It was at this stage of the matter the defendant employed his counsel, and it is asserted that in response to a demand by the latter that the complainant should clear the title, the complainant, who had theretofore named no specific day when he would obtain the release, agreed with the defendant’s counsel that if he did not obtain the release by Friday, November 27th, 1896', he would on that day return the portion of the purchase-money paid, with interest.

. Up to this period no circumstance appears which made time of the essence of the performance, and the establishment of the fact of the change from performance within a reasonable period to performance on a named day, depends wholly upon the proof of the making of the alleged agreement by the complainant that he would conclude the matter on the 27th day of November or refund the price. The defendant sets up this alleged change of arrangement, and with the introduction of this new element into the case the defendant must carry the burden of proving it. The only testimony narrating or supporting the allegation of this agreement to clear the title or' refund on a named day is that of the defendant’s counsel. The complainant, who is alleged to have made the agreement, explicitly and circumstantially denies it. The attending circumstances do not definitely support either statement. The complainant continued to endeavor to get the release and explained the reasons which delayed his success. The counsel for the defendant advised the arrest of the complainant for fraud and brought suit against him for the recovery of the part of the purchase-money paid. The defendant does not appear to have delivered up or tendered the possession of the premises to the complainant at any time.

The testimony offered for the defendant does not carry the burden of proof to show that there was a change of the contract whereby the complainant agreed to get a release by a named day or to refund the price. This change having failed of proof, the parties stood under their former arrangement as to time for completion of the contract. There is neither allegation nor proof that the length of time actually taken in obtaining the release of the mortgage, which was from October 26th, 1896,.t9*Decem-ber 15th, 1896, was an unreasonable period, in view of the difficulties which interfered. Nor are any circumstances shown which made performance at the latter date or when tender was made either injurious or unreasonable. The complainant is shown to have diligently pursued the matter from the time when the arrangement was made that he should secure the release. He was unable at first to induce the holder of the mortgage to give the release, but finally obtained the whole mortgage money to be raised and the mortgage to be assigned to a friendly holder, for the express purpose of getting from him the release of the small corner of the lots in question which it covered. This was done on December 15th, 1896, and was, under the circumstances of the case, a fair compliance with the terms of the arrangement which had been made before the defendant employed counsel, and left the defendant without reasonable cause to rescind the contract or to bring suit to recover the purchase-money. He should pay the balance of the purchase-money and accept his deed, and should be restrained from prosecuting any suit to recover the purchase-money paid.

I will advise a decree in accordance with the views above expressed.


text:
    Lewis F. Hammell v. Sallie H. Hyatt et al.
    [Filed December 12th, 1899.]
    1. Where, by reason of extreme old age and feebleness, the memory of a grantor has so failed that she is unable, when the deed is made, to comprehend the nature of the property being'dealt with, or to understand her relation to it, or power over it, and is incapable of recognizing facts as to its previous disposition, which are directly within her personal knowledge, observation and participation, such a grantor cannot be held to be competent to convey such property by deed.

      2. One who assumes the care of an extremely aged person, of feeble strength .and failing memory, who is so dependent that she cannot safely he permitted ■to be alone, is bound to deal with the weaker party with absolute candor and fairness and to protect her interests, and the caretaker will not be allowed to receive a benefit obtained by inducing or permitting the weaker party to act ■under beliefs known by the caretaker to be false.
    3. A deed obtained by the caretaker from the weaker party, where the only substantial consideration is an agreement to support, will not be sustained where there is evidence that the grantor was induced by a false belief to make the deed, with the knowledge or contrivance of the grantee, and where the .agreement to support does not appear on the face of the deed, and is so under ■the control of the grantee that she may at her option avoid it.
    On bill, answer and proofs.
    The bill in this ease is filed by Lewis F. Hammell, of Phila-delphia, the son of Elizabeth A. Hammell, deceased, who departed this life April 8th, 1898, at the age of eighty-three, testate, by a will dated the 10th day of January, 1894. The bill seeks to set aside a deed made by Mrs. Hammell conveying, the only .land she owned to her niece, Mrs. Hyatt, because it is alleged Mrs. Hammell was mentally incompetent to make a deed, and was induced to make it by fraud and undue influence on the part of Mr. and Mrs. Hyatt. At the time of her death in April, 1898, Mrs. Hammell had living a daughter, Mrs. Cominsky, ■who resided in Baltimore, and her son, the complainant, Lewis F. Hammell. These were her children, her next of kin and heirs-at-law. By the terms of her duly-executed will, she gave •all her real and personal property to her son, the complainant, Lewis F. Hammell.
    Since the year 1891, Mrs. Hammell had made her home at the residence of her son, the complainant, who from that time •up to the time of her death, cared for and maintained her without charge for her board and maintenance. She appears to have been possessed of a bond of the Chattanooga and Tennessee Railroad Company of the face value of $1,000, on which interest was payable in semi-annual payments at the rate of .seven and three-tenths per cent, per annum.. She was also the •owner of a house and lot, the title to which is now in controversy in this case, situated at No. 1010 Locust street, Camden, N. J., and of a few household goods and some clothing, which remained at her son’s house in Philadelphia where she resided.
    In the year 1897, and up to the month of August in that year,, Mrs. Hammell was living with her son as above stated.
    In the early part of August she came over to make a visit to her niece, the defendant Sallie H. Hyatt. Mrs. Hyatt had, in her girlhood, lived for a time with Mrs. Hammell, and the-latter had occasionally visited at Mrs. Hyatt’s house. The members of Mrs. Hyatt’s family consisted, so far as the proof shows, of herself and her husband, 'William F. Hyatt, also a defendant in this suit.
    At the time of the visit to Mrs. Hyatt in August, 1897, Mrs. Hammell was eighty-three years of age. She appears, physically, to have been of feeble strength but in fairly good health, so that she was able to go about, but her mental condition was so uncertain that she was not trusted to leave the house without an attendant. Her principal mental infirmity was the very serious' impairment of her memory, which was not limited to the ordinary forgetfulness which attends upon old age. She had in 1894 freely and openly made and published her will in the presence of several witnesses, but was unable in 1897 to remember it,, save as some sort of a paper which she signed, as she said, by her son’s direction. She believed that the railroad bond for $1,000’ which she owned, and which drew $7.30 interest, was a government bond on which $50 came to be payable on January 1st and July 1st of each year. She frequently inquired as to the health of persons in her own family whom she had known to be dead, and when told they were dead, would again repeat the inquiry. She continued to wear her underclothes for six weeks at a time and could not be induced to change them. She would wander out in the street from her house, and get lost, sometimes until late at night. She would look for things which she supposed she had lost, but could not tell what it was that she sought to find. She would continually repeat questions which had been answered. While visiting at her granddaughter’s in Philadelphia, in January, 1897-, she thought she was in Camden all the time and wanted to go home; she could not remember what room she occupied on leaving her bed at night was unable to find it, to return to it. She had been advised not to' handle a gasoline stove, but despite warning turned on several quarts of gasoline and was about to apply a lighted match, when restrained. She would eat a meal and at once eat another, forgetting the first, and be made sick by it. She did not recognize her granddaughter during the whole time of a visit she made at her house at Easter, 1897.
    This was the condition of Mrs. Hammell shortly before her visit to Mrs. Hyatt, beginning August 1st, 1897.
    Mrs. Hyatt was a favorite niece of Mrs. Hammell, and frequently visited the latter at her son’s house, and must have known these infirmities of the old lady. Mrs. Hyatt is directly proven to have been told a number of these incidents. She admitted to Mrs. Boardman that she could not leave the old lady alone, as she was afraid she would set fire to the house; and she also told her cousin that the old lady was not fit to be left alone.
    Mrs. Hammell remained at Mrs. Hyatt’s house from August, 1897, until her death in April, 1898. On the 3d of December, 1897, an attorney-at-law, who had theretofore transacted some law business with Mr. Hyatt, was invited by him to call at his residence, by a postal card, as follows:
    “ Camden, Dec. 3, 1897.
    * * * “Please call at,my house at five o’clock to-morrow, Saturday, afternoon. I have some business of importance for you to attend to. The parties cannot come to the office. * * *
    “WiiiDiAM D. Hyatt,
    “ 636 Pine Street, “Camden, N. J.”
    Mr. Boardman, a disinterested friend of the family, had also been invited to be present, not by Mrs. Hammell but by Mr. or Mrs. Hyatt, and had arrived a little in advance of the lawyer. Mr. Hyatt took Mr. Boardman up into his room, in the second story, and there told Boardman that he had sent for the lawyer, who was coming. Mr. Hyatt also told Boardman he would like him to be there. In the conversation with Mr. Hyatt, ■which was about Mrs. Hatnmell’s affairs, Boardman got the impression that Hyatt wanted Mrs. Hammell to make a will. Boardman, who had seen Her within a month, who had known her for a long time, did not think she was competent to make a will, and for this reason refused to participate in the business, and came away almost at once after the lawyer arrived.
    The lawyer had never seen Mrs. Hammell, and knew nothing of her previous history. He does not appear to have been told that previous to his arrival it had been intended to get a will or some like paper from Mrs. Hammell. He was not told by Mrs. Hyatt anything as to the mental condition of the old lady, ■nor that she was not fit to be left alone, nor was Mr. Board-man’s refusal to be present and to participate in the business made known to the lawyer.
    There were two more interviews between Mrs. Hammell and the attorney, both of them arranged by either Mrs. Hyatt or her husband. Mrs. Hyatt was present with Mrs. Hammell during all her conferences with the lawyer, and there seems to fee no question that unless attended by some competent person Mrs. Hammell could not be trusted to go about.
    On December 13th, 1897, the deed in dispute was made by Mrs. Hammell to Mrs. Hyatt, and the acknowledgment was taken by the attorney in Mrs. Hyatt’s presence. The consideration expressed is

      u tlie natural love and affection which she has unto the said Sallie H. Hyatt, and of one dollar lawful money of the United States of America and other valuable cons'deration well and truly paid by the said party of the second part to the said party of the first part at and before the ensealing and delivery of these presents,” &c.
    The deed makes no specification of what other valuable consideration than the $1 was paid. Nor does it in any way indicate that a separate written agreement, obliging Mrs. Hyatt to support Mrs. Hammell during her life, was an inducement to the making of the deed. The separate written agreement is dated the same day as the deed and refers to it as made. It is signed and sealed by both Mrs. Hyatt and Mrs. Hammell, but is neither witnessed nor acknowledged by anyone, and of course was not recorded. The deed was recorded on the day of its date, but the fact that it had been made was not communicated by Mrs. Hyatt in any way to the complainant, Mrs. Hammeil’s son, with whom she lived in Philadelphia. On the 8th day of April, 1898, Mrs. Hammeil died while still at Mrs. Hyatt’s house. Her son was notified of her serious illness the day before her death, but got to Mrs. Hyatt’s house only after his mother was dead. He took her body home and buried her from there.

      Mr. Alfred Hugg, for the complainant.

      Mr. F. Morse Archer, for the defendant.
   Grey, V. C.

The deed from Mrs. Hammeil to Mrs. Hyatt is attacked upon three grounds — -first, because it is alleged Mrs. Hammeil was on December 13th, 1897, the day of its date, incompetent to make a deed; second, because it is claimed that Mrs. Hyatt obtained that deed to be made by fraud; and third, because it is alleged she exerted an undue influence over Mrs. Hammeil to induce her to make the deed.

The first contention is that Mrs. Hammeil was incompetent to make the deed now in dispute. The proofs show that Mrs. Hammeil was eighty-three years of age. She was quite feeble in strength but appears to have been physically able to go about from place to place. Her mental powers had for several years beeti very seriously impaired because of the breaking down of her memory almost to the point of delusion. This infirmity had increased upon her to such a degree that it is difficult to recognize her capacity to conduct a business transaction. Mere lapse of memory, as indicated by inability to recall past events at will, is of course no ground upon which to deny capacity to contract. The proofs as to the condition of Mrs. Hammeil go much farther than this. She could not keep in mind the locality of her own home, or her room in the -house where she was staying, or the bed iii which she slept. She forgot that she had eaten her meals. She was under the belief that her daughter, who had been dead some time, was still living, and when told she was dead would again speak of her as alive. At the very time of the execution of the deed now in dispute, she did not comprehend of what her estate consisted, for she spoke of her government bond drawing interest at $50 every six months, when in fact the only bond she had was a railroad bond drawing but $7.30 interest. She appears, when she made the deed, to have forgotten that she previously made a will in the presence of witnesses by full publication. She then actually believed that her son was defrauding her of her interest, when in fact he had been maintaining her for six years without charge, and she could get her interest at her own choice, her son in nowise preventing her.

She believed that her son was, against her wish, collecting the rents of the property conveyed by the deed in dispute, and that this conveyance was necessary to be made in order to prevent him from continuing to collect these rents, while the truth was that she was herself, unhindered by her son, personally collecting these very rents.

These failures of memory on the part of Mrs. Hammell left her in such a frame of mind that she was unable to have before her that consciousness of the property with which she was dealing, and of her relation to, dispositon of and control over it which were necessary to make her action in regard to it competent. The court of appeals, discussing the extent to which the destruction of the memory may impair the capacity of a contract, has declared that “ a person who is oblivious of a former disposition of his property is as unfit to make a subsequent disposition thereof as if he was under an insane delusion as to its extent and character.” Haydock v. Haydock, 7 Stew. Eq. 570.

Mrs. Hammell’s condition of mind at the time she made the deed' was that of a person who is incapable of recognizing and appreciating ■ the elementary incidents necessary to the conduct of business, though they are directly within her own knowledge and observation. Her condition of mind was that of. a person acting under actual delusion, for she believed things to exist, against her own knowledge and observation that they did not exist. Such a person cannot be held to be competent to make a contract.

The second ground of contention against the validity of the deed is that Mrs. Hyatt fraudulently induced Mrs. Hammell to make it, and the third point, that Mrs. Hyatt exerted an undue influence to secure the deed, may be considered together.

Of that sort of undue influence which is exerted by forceful assumption of a dominating control, there is no evidence in this case, but of that kind whereby the weaker party is misled into action by betrayal of confidence on the part of the stronger, upon whom she relied, and had a right to rely, there is a plenitude of proof.

If it be assumed that Mrs. Hammell had at times sufficient capacity to make the deed in question, it cannot be sustained if it were obtained from her by fraud or by the exertion of an undue influence, whereby Mrs. Hammell’s independent action was prevented or she was misled by the superior capacity of those who had her in their care and in whom she rightfully placed her confidence.

From this point of view the deed in dispute may be considered in two different lights — as a conveyance for a valuable consideration and as a gift from Mrs. Hammell to Mrs. Hyatt. In considering either of these points the character of the parties and their relation to each other are of the greatest importance.

It is indisputably shown by all the proofs that Mrs. Hammell was in her extreme old age; that her memory was so impaired that she was unfit to be trusted, unaided, to do the simplest things, even to go from one place to another. She was feeble in strength and was invariably attended by some competent person. Mrs. Hyatt was her niece, whom she loved, whom she had been in the habit of visiting. Mrs. Hyatt’s relations to Mrs. Hammell for years had been so intimate that there can be no question that she knew fully all of Mrs. Hammell’s weaknesses and dependence upon her care and protection. Mrs. Hammell appears to have believed and trusted Mrs. Hyatt absolutely.

At the time the deed was made, Mrs. Hammell had been brought by Mrs. Hyatt to her house on a visit. Prior to that time the evidence shows Mrs. Hammell had made her home happily with her son, for six years, without charge. There is not a word of proof that during these six years the mother and son ever had a difference, either in their personal relations or in the conduct of her business by him, save as the mother’s declarations made after she came under Mrs. Hyatt’s control, show the existence of such dissentions. Mrs. Hyatt knew how the mother and son lived during these six years, for she frequently visited intimately at their house, in Philadelphia, but she offers no proof whatever that during that time she saw or heard of any difficulty between Mrs. Hammell and the complainant. When, however, Mrs. Hammell had been brought by Mrs. Hyatt over to her house in Camden, Mrs. Hammell’s supposed wrongs received from her son began to be exploited, but always solely through what the witnesses declare Mrs. Hammell said while at Mrs. Hyatt’s house, never by proof of what the witnesses saw or heard of what was done at the son’s house, in Philadelphia. All these declarations are in the nature of hearsay. Mrs. Hammell’s unsworn statement might be in evidence to show her condition of mind, but not to prove the thing stated to be a fact.

After Mrs. Hammell had been in Mrs. Hyatt’s care for about four months, Mrs. Hyatt’s husband had “business of importance” which he invited an attorney to transact, who had never seen or heard of Mrs. Hammell, and Mr. Boardman who had long known her. Mr. Boardman, as soon as the probable character of Mr. Plyatt’s business was indicated, left the house, refusing to participate. When Mr. Hyatt’s “business of importance” was opened to the lawyer, it was at once made apparent that though he had been invited to attend upon Mr. Hyatt’s business, Mrs. Hammell was put to the front as the person whose business was to be transacted. The lawyer knew nothing of Mrs. Hammell’s infirmities, of her property, of her son’s conduct, or of her own control of her property, save as she related them to him. Mrs. Hammell stated her grievances to the lawyer in ,Mr. and Mrs. Plyatt’s presence, and this narration throws light on the origin of the deed now attacked. Mrs. Hammell told the attorney that she desired to consult him about her property, that her troubles were that her son was collecting her interest on her government bond and the rents of her house, and that she desired to get from his possession her personal property, consisting of a small quantity of household goods, &c. She told the lawyer that her son had been “ gouging her ever since he was big enough.” She evidently believed that her son was wronging her, that she could not collect her interest or her rents or have her household goods, because of his interference with her affairs. Mrs. Hyatt sat by and knew that Mrs. Hammell had this belief; she knew the lawyer was about to advise Mrs. Hammell on this basis. All these three causes of supposed grievance of Mrs. Hammell against her son, Mrs. Hyatt knew were in fact false.

As to the collection of interest by the son on the only bond which Mrs. Hammell owned, the railroad bond, Mrs. Hyatt herself testified, not that the son'collected the interest in defiance of his mother’s wish, but that Mrs. Hammell told her that “ she must go home in time to draw her interest or Lewis would have it drawn for me,” showing that the collection of the interest was entirely at Mrs. Hammell’s choice.

As to the rents of the house,- the testimony shows that Mrs. Hammell and Mrs. Hyatt had, for several months next preceding December 4th, 1897 (when this’ interview with the lawyer took place), together personally collected these rents and had notified the tenant not to pay them to the son. The son had not collected any rents since the early part of the preceding August, nor had he attempted since that time to interfere with his mother and Mrs. Hyatt in their collection of these rents. So that on December 4th Mrs. Hammell had in fact no grievance on this point on which she needed relief. Mrs. Hyatt knew this a,t the time, for, as stated, she had participated in these collections of the rent and in the notice to the tenant.

The small portion of household goods of Mrs. Hammell were in the possession of the son because they were at his house, where Mrs. Hammell made her home, but Mrs. Hammell had never asked for their delivery to her, and her son had no reason to suppose she wanted them. He had never denied her right to them.

As to all these supposed wrongdoings of the son, of which Mrs. Hyatt had such detailed knowledge, not one of them appears ever to have been made the subject of complaint to him, either by his mother or by Mrs. Hyatt. It was perfectly reasonable and natural that her only son, with whom this old lady had freely lived for six years, should care for her property and wait upon her until notified by her that he should treat her as a stranger.

It is obvious that if the truth had been made known to the lawyer he would have had no occasion to advise Mrs. Hammell to make a deed. Mrs. Hyatt knew the truth. She did not tell the lawyer that Mrs. Hammell could collect the interest on her bond whenever she desired to do so, nor that she had for four months collected the rents without hindrance and that she had never asked for possession of her household goods. If she had the lawyer would probably have advised her that a notice to the party paying the interest not to pay it, and to the tenant not to pay the rent except to Mrs. Hammell or her order, would have abundantly protected Mrs. Hammell from the imaginary dangers which she feared. But if this had been done there would have been no deed made by Mrs. Hammell to Mrs. Hyatt.

The lawyer accepted Mrs. Hammelfs statements as true. He advised her, at the interview of December 4th, 1897, tkat in order to be relieved she might make a deed of trust conveying her property. She disapproved of this. He then told her she might make a will of her property or give a deed or bill of sale for it at once. She told him she wanted her daughter, Mrs. Cominsky, to have the $1,000 bond when she died, and her niece, Mrs. Hyatt, to have the Locust street house. He told her she might sue in replevin or trover for the bond and household goods, and that another way of keeping her son from collecting this rent was to make a deed at once to her niece, Mrs. Hyatt.” She said she would like to do that, but that she wanted the rents as long as she lived. The lawyer says he then suggested that she make the deed in consideration of her niece giving her the rents and providing her with a home as long as she lived. Mrs. Hyatt assented to this, and Mrs. Hammell said she would think it over and come to the lawyer’s office and let him know.

Subsequently, in Mrs. Hyatt’s presence, she told the lawyer that she had decided to go ahead with the deed, and at interviews at which either Mr. or Mrs. Hyatt was always present, Mrs. Hammell made to Mrs. Hyatt the deed now in dispute. It was executed at the lawyer’s office on December 13th, 1897, acknowledged and recorded the same day.

Prom the above reference to the lawyer’s testimony, it plainly appears that the matter which Mrs. Hammell believed it was desirable and necessary to accomplish was not a disposition or conveyance of her property to anyone, but the recovery of the possession of her personalty, and especially the stopping her son from collecting the interest on her bond and the rents from her house, and that the subject of a deed to Mrs. Hyatt, so far as Mrs. Hammell and the lawyer were concerned, wms not the business which occasioned the interview. The lawyer appears to have advised Mrs. Hammell to make the deed to Mrs. Hyatt because he was told the son was collecting the rents of the property conveyed by the deed and as a means of preventing it. Mrs. Hyatt, the grantee in the . deed, stood by and accepted it, though she knew it was obtained by making Mrs. Hammell believe a falsehood, for, as above stated, Mrs. Hyatt had herself aided Mrs. Hammell in collecting these rents for the past four months.

Mrs. Hyatt knew Mrs. Hammell’s weakness of mind and her utter dependence upon those who, had her in charge. With this knowledge, Mrs. Hyatt took Mrs. Hammell from her home at her son’s house and brought her over to Camden on a visit.' She thus voluntarily placed herself in the position of a caretaker or guardian of Mrs. Hammell, and will be charged by the law with the duties which attend upon such a relation, and will not be allowed to take a benefit obtained by inducing or permitting the defendant party to act under beliefs known by the beneficiary to be false.

The elementary question in cases of this character is whether the party who stands in the position of caretaker has, by fraudulent contrivance or conduct, induced the weaker party to make the contract. Mere inadequacy of price, unless it were so gross as to be unconscionable, would not of itself be evidence of fraud, but leading the weaker party to believe that property while standing in her name is in danger when in fact it is not, and standing by, knowing but not disclosing the truth when this false belief is made the basis or excuse for the conveyance of the property by the weaker party to the caretaker, is conduct on the part of the taker which savors of fraud. When such a contract is thus obtained, the fact that there may have been to some extent a valuable consideration paid or promised, does not relieve the contract from the fraudulent taint, else fraud-doers might readily protect their enjoyment of the fruits of their fraud by the payment of an actual and valuable, though to them profitable, consideration. They are not entitled to the reasonable profit which induces all contracts, when the contract is procured to be made by falsehood.

The counsel for the defendants insists that the deed to Mrs. Hyatt was not a gift and that it must not be tested by the rules applied to gifts; that a valuable consideration was in fact given for the deed, aud that it was a matter of commercial contract for an adequate consideration between Mrs, Hammell and Mrs. Hyatt. But the whole trend of the proof is to the contrary.

Mrs. Hyatt swears that so early as August 8th, 1897, Mrs. Hammell told her, “I am going to give you that house,” not sell it to secure a living, reserving rents. Other witnesses state Mrs. Hammell’s declaration of an intent to give, all made while she was under Mrs. Hyatt’s care. None refers to any mention of a sale.

Again, there was no pretence of observance of the ordinary inquiries which attend a sale of real estate. No searches were made to ascertain whether there were any mortgages or judgments against the land. Mrs. Hyatt was well content to take a deed and with it the chances of unlimited prior liens. No inquiry even appears to have been made on the subject..

The contract to support Mrs. Hammell was in no way indicated on the' face of the deed — was executed without witnesses or acknowledgment by Mrs. Hyatt — and if it ever was delivered to Mrs. Hammell, the delivery, considering Mrs. Hammell’s utter dependence upon Mrs. Hyatt, was no more than a delivery to the latter. Nothing prevented Mrs. Hyatt from at any time suppressing the contract, and Mrs. Hammell’s enfeebled mind and impaired memory would have been useless in support of any attempt to assert rights under it. Had the contract for support been bona fide it should have been so referred to in the deed that the grantee could have been bound by it. But this agreement to support, which was wholly executory, was not only omitted from the deed but it is doubtful if it ever was delivered. Mrs. Hyatt, in her answer, alleges that she has possession of it and tenders its production. She did produce it at the hearing. She had it always in her power to have suppressed it. Such a retention was, in Mott v. Mott, Dick. Ch. Rep. 209, held to be a fraud, and it was declared that the omission of such a contract from the deed is of itself a badge of fraud, upon the broadly-equitable ground that it is the duty of one occupying the position of a caretaker, who makes a contract with one dependent upon him for protection, to see that the consideration which is to proceed to the weaker party is secured as fully and as perfectly as that which passes to the caretaker.

That there was an attempt to give to the transaction now in dispute a commercial character is shown by the actual payment of the nominal consideration of $1. But this unusual payment is of itself an indication of a purpose to give color to the matter which, it was felt by those conducting the business, it would not otherwise have.

That the alleged bargain was greatly to Mrs. Hammell’s disadvantage is plainly apparent. At the time the arrangement Avas made Mrs. Hammell had support and maintenance from her son without charge, and Mrs. Hyatt knew this, because an inquiry was made in her presence, before the attorney, whether the son might not make a claim for supporting his mother. I am constrained to believe that Mrs. Hyatt knew that Mrs. Hammell had lived happily with her son. She knew that Mrs. Hammell, at the time the deed was made, was utterly dependent upon her for care and protection, yet Mrs. Hyatt accepted from Mrs. Hammell a deed by which she conveyed to Mrs. Hyatt the fee of all the land she had, ostensibly in payment for a support which she was getting for nothing from her son.

Another indication that it was Mrs. Hyatt’s and not Mrs. Hammell’s purpose which controlled the situation is given when the events subsequent to the lawyer’s interviews with Mrs. Hammell are considered. Mrs. Hammell, in that interview, is reported to have declared, when asked what she would have done with her property — whom she wanted to have it — that “she wanted her daughter, Mrs. Cominsky, of Baltimore, to have the $1,000 bond when she died, and she wanted her niece, Mrs. Hyatt, to have the property on Locust street.” Mrs. Hyatt got the deed for the Locust street house, but no provision was ever made to give the bond to Mrs. Cominsky.

There was some inquiry as to legal steps to recover Mrs. Hammell’s personalty, which were directed by Mrs. Hyatt (in Mrs. Hammell’s name) to be stopped, on the excuse that she had no money. But the lawyer testified that he offered to negotiate a mortgage on the property to raise the necessary money for prosecuting the case, but this Hammell, Mrs. Hyatt being present, declined to do. No demand was ever made upon the son to deliver over the bond or the personal property or that he stop collecting the rents.

In short, the situation opened to the lawyer as a consultation about Mrs. Hammell’s property, resulted solely in securing to Mrs. Hyatt her deed for the Locust street house. Before consultation and the making of the deed, Mrs. Hammell got the rents, though she believed her son was getting them. After the deed was made Mrs. Hyatt (though very unwillingly) herself testifies that Mrs. Hammell continued to collect them. This was directly in the face of the effects of both the deed and the agreement, for the deed gave the rents to Mrs. Hyatt and the agreement only provided that Mrs. Hammell should have the net income after payment of taxes, &c.

Before the consultation the son had the custody of the bond, and if his mother did not collect the interest he drew it for her. After the consultation he continued to do just as he had done before. Nothing was done to relieve Mrs. Hammell from the injuries she was supposed to be suffering by reason of the grievances opened to the lawyer. She, in her inability to comprehend the situation of affairs, went on happily collecting her rents the same as if she had made no deed. Her consciousness was unaffected by the transaction, which made no outward and visible change in her ownership of the property. Mrs. Hyatt went with Mrs. Hammell when the latter collected the' rents, after the deed was made, when she knew Mrs. Hammell was not entitled to take them, but made no effort to explain to Mrs. Hammell that, since making the deed, she had no right to the rents.

The weight of the evidence shows that Mrs. Hammell, in her enfeebled condition of mind, was wholly dependent upon Mrs. Hyatt, who was bound to care for and protect her, and that the latter obtained the deed in question by a fraudulent assent to Mrs. Hammell’s action while under a false belief and for a consideration executory in its character, which Mrs. Hyatt retained the power to avoid. The action of Mrs. Hyatt was a fraud and an imposition upon Mrs. Hammell, which makes void the deed so obtained.

I will advise a decree in conformity with the views above expressed. ■