Thorp v. Smith. one month before his death, he executed a mortgage upon the premises to the defendant, Mrs. Smith, to secure the sum of $3,000 in one year, with interest payable semi-annually and also certain other sums of money which will be hereafter more fully stated. The object of the bill is to have this mortgage declared void as against the complainant, and for a partition of the premises. The grounds stated in the bill upon which the complainant bases his right to relief as against the mortgage are that at the time it was executed his father was enfeebled by disease and age, both in his body and his mind, and was, and for some time had been, subjected to the exclusive influence of his daughter; that the mortgage was without consideration and was the result both of improper influence on her part and a clear misapprehension of the true situation of his affairs and his family relations and of his duty to both his children. The bill calls for an answer as to the consideration of the mortgage, and the defendants in their answer set it out as follows: "Services and attendance rendered and given by Isabelle Thorp Smith to Ezekiel Thorp in his lifetime," and "money lent by Isabelle Thorp Smith to Ezekiel Thorp, and moneys received by Ezekiel Thorp to the use of Isabelle Thorp Smith, and money paid by Isabelle Thorp Smith to the use of Ezekiel Thorp, and love and affection existing between Ezekiel Thorp and Isabelle Thorp Smith." No consideration in money passed at the time of the execution of the mortgage, or at any other time, from the mortgagee to the mortgagor. The defendants attempted to sustain it on the ground that the mortgagor, at the time of its execution, was in complete possession of his faculties and under no improper influences on the part of his daughter or her husband, and that he thoroughly understood and appreciated what he was doing, together with the result, and that the true consideration was in part for services which his daughter had already rendered and a feeling of gratitude to her for her kindness to him. In addition to the grounds set out in the bill, the complainant advanced another ground at the hearing, and was permitted to adduce proof in support of it, the defendant being given Thorp v. Smith. ample opportunity to answer it. That ground, briefly stated, was that, at the time the lot upon which the house stands was purchased by the father and the house erected thereon, a parol. contract was entered into between the father and son by which it was agreed that their joint earnings should be invested in paying for the property, and that it should, at the death of the father, belong to the son and daughter jointly, and that the son, relying upon that parol contract, did render services and earn moneys which were taken by the father and used in paying for the property. In order to properly understand the situation of affairs at the date of the mortgage, it is necessary to go back many years and give the history of the family from the childhood of the complainant and defendant. The father was a mason, bricklayer and plasterer by trade, and somewhere before the year 1860 married a Miss Robinson, belonging to a family of that name who lived very near the premises in question, who bore him the two children, parties hereto, the complainant being born in the year 1860, and his sister, the defendant, in 1867. It was shown in the proofs that the wife of the deceased was, early in her married life, afflicted with insanity, and for many years, and up to her death, which occurred in 1895, lived in a sanitarium, which, however, seems to have involved no great expense to her husband. For about twenty years prior to the year 1886 the father lived with his wife's family, the Robinsons, and his daughter also, during the whole of that period. When the complainant was old enough to work out he obtained various jobs in New York City, where his paternal grandparents lived, and earned his own living. The daughter attended the public school and, according to her account, was supported by her mother's family, with the exception of her clothing, the materials of which were furnished by her father, who also gave her some spending money. Somewhere about 1882 or 1883 the son, having lived away from home for five or six years and attained his majority, went to work for his father at the mason trade, receiving small wages and boarding himself, and by the year 1885 or 1886 was a Thorp v. Smith. journeyman mason, able to do journeyman's work and earn journeyman's wages. Up to 1886, however, he had received from his father only small wages he says $6 a week-out of which he supported himself, and entries in the books of account in his father's handwriting sustain his statement. He always has been a sober, industrious, hard-working and saving man, with no expensive habits, and, according to his sister, decidedly stingy. Up to the last time mentioned-1885-1886-his father had acquired little or no property. He was a rather jolly, goodnatured man, without much business capacity or thrift, and, according to a large number of witnesses who knew him well and whose evidence was given in such a manner as to command belief, he was of an easy, yielding nature, easily persuaded, and generally agreed on any subject with the last man who sought to convince him. He pursued his calling as a mason, bricklayer and plasterer by doing small jobs of repairing and additions, by the day, and occasionally doing mason work by contract on small houses. He had neither capital nor talent to undertake large transactions, but at the same time he was a man who made friends and was generally esteemed. This being the situation, in the early part of the year 1886 a Mr. Heritage, who was his friend, and for whom he and his son were working, suggested to him that he should buy a lot and build a home for himself, referring to his son having grown up and now working with him and his daughter becoming a young lady, and when, in answer to this suggestion, the deceased spoke of his want of money, Heritage agreed to assist him by loaning him money without security for the purpose of buying a lot and also to negotiate for the purchase of a lot for him. The result was that he was able to scrape together $450 in cash, which, added to $650 loaned to him by Heritage on his note, enabled him to buy the lot here in question at the price of $1,100, without giving a mortgage. His son, the complainant, had already taken four shares in a building and loan association in the neighborhood in which his father was a director or manager, and he thereupon assigned those shares to his father. Thorp v. Smith. and upon them the father procured a loan from the association for $800. With that money a building was commenced and subsequenty $2,400 in addition was borrowed from the same source and a mortgage given therefor, twelve additional shares, of $200 each, in the association being taken in the name of the father. The house was then erected, the father and son working in its construction, the total cash expended in its erection being $3,200, besides the joint labors of the father and son. This made the cost of the house and lot $4,300 over and above the value of the labor of the father and son which entered into its construction. It was then fairly worth $4,500, and that is the value now put upon it. The son swears that when his father undertook to build the house they made an agreement, wholly by parol, stated by the son as follows: "We entered into a contract there that I would work for my father, and he would work, and we would both work together, and put every dollar that we could into that house outside of the support and living of ourselves, and pay for that property, and that if anything should happen, that he should die before I did, it would revert to my sister and myself. That was the contract entered into." The house was finished in the fall of 1886, and the father and son took possession and set up housekeeping, the daughter being the housekeeper, and the father and son living with her. The house contained three floors, with three rooms on each floor, called, respectively, parlor, dining-room and kitchen. They rented out one floor for $16 a month. That rent was paidcertainly after a year or two-to the daughter. She used it for beautifying the interior of the house and furnishing it, for her own clothing and pocket money, and for the hire of a cheap servant to assist her in housekeeping. From the time of setting up housekeeping they all lived together and the expenses of the housekeeping, table, &c., were all paid out of the joint earnings of the father and son. About the same time the father and son entered into a partnership, under the firm name of E. Thorp & Son. The father already had a bank account in his individual name in the Hudson County Savings Bank, which was an institution of a dual char Thorp v. Smith. acter, one part being devoted to pure savings bank business and the other part to the ordinary business of keeping active accounts and discounting paper. That account was continued, without change, in the name of the father, and all the funds of the partnership that were deposited in any bank were deposited to that account. The nature of the business was, as before, small jobbing and repairing by the day and small contracts, employing usually one journeyman, besides the father and son, and oссаsionally one or two extra journeymen, with the ordinary force of laborers, making four, five or six hands, including the partners. About five years previously the father had joined a local association of the Royal Arcanum, in which he insured his life for the benefit of his son and daughter, respectively, for $1,500 each, separate certificates being made out to each. Upon those certificates monthly or quarterly dues had to be paid. In addition to these payments the interest and dues to the building and loan association, which held the two mortgages for $3,200, and the interest on the note to Mr. Heritage had to be paid. This was done promptly and all out of the joint earnings. The payments consisted, as usual in such cases, first, of the interest of six per cent. on the whole face of the loan, and second, dues on the shares in the association, at the same rate, making twelve per cent. monthly on the whole face of the mortgage until the accumulated earnings should extinguish them. The first mortgage of $800 was canceled as paid October 30th, 1893; the second mortgage of $2,400 was canceled as paid on July 2d, 1896, all, as we have seen, as the result of monthly payments at the rate of twelve per cent. a year. A third mortgage to Mr. Heritage for $643, being the balance due him on the original loan, was given on the premises June 2d, 1889, and canceled as paid January 31st, 1895. A new mortgage was given to the building loan association for $1,000 on January 9th, 1895. That loan was based on five shares of stock in the institution, and by the working of the system it was gradually paid off from the same source, and at the time of the deceased's death only about one-half of it remained due; and the monthly dues on the shares were paid up in advance |