Perine v. Dunn , 3 Johns. Ch. 508 ( 1818 )

The cause stood over for consideration until this day.

The Chancellor.

The plaintiff, Catharine, seeks to set aside as void, the mortgage and judgment given to the defendant by her father, Simon Swaim; but if either of them were to be regarded as valid liens, she then prays that an account may be taken of what is due upon such lien, and that she may be let in to redeem.

She rests her claim to set aside the mortgage, &c. on her title, as owner of the land, under a deed from her father of the 14th of November, 1794. The bill was originally against him, as well as Dunn, the mortgagee, but Swaim dying before the answers came in, it was admitted on the part of the present defendant, that the plaintiff, Catharine, was his only child and heir at law. Her title to the land, subject to the incumbrance, is indisputable. She inherits a title to it as heir, if she had not, before, a title to it by deed.

The defendant holds a bond and mortgage executed to him by Simon Swaim, in February, 1814, for 1,000 dob ears, and the main question is, whether that mortgage be a valid lien on the lands claimed by the plaintiff. The judgment which the defendant afterwards obtained, was for the same mortgage debt, and was confessed, in order to facilitate the recovery, and it may be placed out of view in respect to the present inquiry.

1. The first point is, whether the plaintiff, Catharine, had, at the time the mortgage was taken, a valid title to the land, under her deed of 1794, so as to defeat the claim under that mortgage.

The deed of 1794, was executed on the day that Simon Swaim married his second xvife, Dorothy, and it xvas' executed a short time previous to the marriage. It xvas a voluntary conveyance, without any valuable consideration; it was concealed from-the wife, and its object was to cut off her claim for dower, if she should survive her husband.

This deed, as I conclude from the case, was executed under the influence of the plaintiff Catharine, and her husband, and it xvas not intended by any of the parties in interest, to go into operation until the death of Swaim. It was not delivered to the daughter, but to one of the subscribing witnesses. It was intended to be, and for upwards of eighteen years afterwards continued to be, a transaction concealed from the world. The grantor continued in possession of the farm, and acted as oxvner, and was reputed, and had credit as owner, from the date of the deed in 1794, doxvn to the year 1813, when the family quarrel first broke out, and the claim under the deed was first publicly advanced.

It will not be necessary for me to go minutely through the volume of testimony which has been compiled in this case. A great part of it might have been spared, for it is idle and useless repetition. My impression is very strong, that the deed was of the charactér I have mentioned, and was intended by all the parties concerned to be kept sé- ‘ cret, and was studiously concealed from the knowledge oí the public from the time of its execution, down to 1813. j am eqUa]]y dear in my conviction, that the deed was taken into the permanent possession of Catharine’s husband, contrary to the intention, and without the consent of the grantor, and that he never intended to abandon the possession, or his right to the enjoyment of the farm. His object, in admitting his grandson into the possession, in 1813, was not that he was to occupy as tenant to Joseph and Catharine Ferine, or either of them, but that his grandson might assist him in the management' of the farm, which he felt himself .unable to manage, through the feebleness of age. His grandson came in under him, for that purpose, and he was admitted to share equally in the profits, as a compensation for his services. The subsequent efforts on the part of Joseph and Catharine■ P. and their son, to deprive Simon Swaim of the possession and use of the farm, and to separate him from the society and assistance of his wife, were violent unnatural, and unjust. I think I do not use epithets that are not well warranted. The case strikes me in this light, after noticing the object and history of the deed, and after reading and comparing the testimony. .

A voluntary deed executed for such a purpose, and not delivered to the grantee, but kept concealed, and unaccompanied with delivery of possession, cannot be set up against any third person dealing with Swaim, as owner. I state this as a clear and obvious principle of law and policy ; and it is perfectly immaterial whether rumors of the existence of the deed did or did not come to the knowledge of such third person. He was not bound to listen to the rumor, nor to give credit to such a deed. Lord Hardwicke considered, (1 Atk. 16.) that a continuance in possession, after a voluntary deed, was a strong circumstance of fraud. The rule on this subject, was correctly stated by Lord Rosslyn, in Bates v. Graves, (2 Vesey, jun. 393.) He says, “ that where there is a conveyance of an estate, and possession is retained, towards all third persons, the person to whom it is conveyed will not be allowed to be considered as owner, nor will the ownership be devested.” The court of Chancery, according to the cases, (Pulvertoft v. Pulvertoft, 18 Vesey, 84. Smith v. Garland, 2 Merrivale’s Rep. 123.) will not act in favour of, or help a voluntary conveyance, but will remain neutral in* respect to it; and surely this course will be adopted, when the conveyance has such a fraudulent stamp, and has been so kept and applied as the one in question.

In this case, the claim under the voluntary conveyance was set up before the existence of the mortgage; but when we consider the history of the deed, and the circumstances under which the claim has been made, the priority of the claim cannot give the deed any additional force, as respects third persons. The grantor never gave possession under the deed, but, to the day of his death, he resisted the pretension under it, as unjust and fraudulent. Such a deed cannot be permitted to have any operation in this Court, as against the rights of the defendant. It was made, and kept concealed, and then finally acquired, and used for unjust or unconscientious purposes. The bond and mortgage ought to be tested by their own intrinsic merits, and not be suffered to be affected by that deed in any possible degree.

3. Putting the deed entirely out of view, the next question is, upon what terms is the plaintiff Catharine, as heir at law, entitled to redeem?

A great deal of testimony has been taken respecting the competency of Simon Swaim to transact business, in February, 1814, when he gave the bond and mortgage to the defendant. My conclusion is, that he xvas of competent mind and memory, and that he acted knowingly and understandingly, when he executed those instruments. There would be no safe dealing among men, and especially xvith men in the decline of life, if solemn contracts can be annulled upon such loose and vague opinion as is offered in this case, to prove a want of sanity in the mortgagor. The ordinary infirmities of age, and occasional acts of intemperance, are not sufficient to impeach a deed, when no unfair practices have been used, and especially when it is shown as a positive fact, that the party was competent, and understood himself well at the time.

It is, next, urged, that a part of the consideration of the bond was illegal, and founded on the offence of maintenance, being for pecuniary assistance given, or pledged, for the costs of the law suits in which Simon Swaim was involved.

The bond was given partly for moneys due to the defendant, and partly for assistance given to Swaim, to enable him to defend himself at law and equity, in the possession and use of his farm.' The defendant agreed to pay 637 dollars 41 cents, towards costs of suits, in which Swaim was a party, and he gave a note for that sum to Mr. Wallis. But under the circumstances of the case, at the time, it was so far from being illegal, or amounting to the common law offence of maintenance, that it was a very meritorious and commendable act of charity. The situation of Swaim was one of great distress, and which naturally excited sympathy. He was deprived of credit and resources, and almost cut off from the common necessaries of life, by the efforts of his daughter, and of her husband and son, to deprive him of his farm, and separate him from his wife. He might justly have taxed his daughter with unhindness; and assistance, at such a crisis, by the son of his wife, was an act of benevolence that must have been most grateful to his feelings. To hold the assistance given by the defendant unlawful, would, as Mr. J. Buller observed when speaking of the harshness of the ancient doctrine of maintenance, be “ repugnant to every honest feeling of the human heart.” It is accordingly, now held to be the law, (Hawk. Pl. C. tit. Maintenance, s. 20. 26. 4 Black. Com. 134.) that any one may lawfully give money to a poor man, to enable him to carry on his suit; and that whoever is, in any way, of kin or affinity to either of the parties, may assist him, or apply to counsel to assist him.

I shall, accordingly, declare, that the plaintiff cannot be let in to redeem, but on paying the sum due upon the bond and mortgage, and including therein, as a valid part of the consideration, the costs which the defendant has’ paid, or engaged to pay, for Swaim-, and upon paying, also, the costs of this suit, and the costs of the action of ejectment, brought by the defendant upon the mortgage; and, also, the costs of the proceeding, under the power to sell, contained in the mortgage. In respect to the judgment and the execution, I shall perpetually enjoin any farther proceeding thereon. A reference must, accordingly, be had, to compute the amount due on the bond and mortgage, after crediting the plaintiff with any payments shown to have been made thereon, or with any moneys collected upon the execution.

Decree accordingly.