McDowell's Executors v. Fisher

25 N.J. Eq. 93

• Court: New Jersey Court of Chancery
• Decided: May 15, 1874
• Status: Published

Opinion

The Chancellor.

This is a suit to foreclose a mortgage given by the defendants to George McDowell, dated May 22d, 1868, on land in Middlesex, to secure the payment (according to its terms) of $3000, on or before the 1st of April, 1869, with interest.

McDowell died in 1872. The complainants, his executors, filed the bill in 1873, alleging that the mortgage was given to secure an indebtedness of $3000 due from Fisher to McDowell when the mortgage was executed. The answer, which, according to the requirement of the bill in that respect, is under oath, states that the mortgage was made merely as security for advances of money which Fisher and McDowell contemplated that the latter, who was Fisher’s father-in-law, might thereafter make to him, should it prove to be necessary, to aid him in extricating himself from certain pecuniary difficulties in which he was then involved, through making or endorsing notes for his brother-in-law’s accommodation. The proof is clear that such was the real character of the instrument, and that no money was ever advanced upon it under the arrangement from which it originated. The testator ought to have given it up to be canceled. Only a few months before his death, he bade the person who drew his will bear it in mind that the mortgage had been given merely to secure advances which had not been made, and in the conversation he spoke about having it canceled. The executors do not appear to have been cognizant of the circumstances under which the mortgage was made, and their action in filing the bill seems to have been entirely bona fide.

The bill must be dismissed, with costs, to be p>aid out of the estate.