Van Wagenen v. Hopper , 8 N.J. Eq. 684 ( 1852 )

The Chancellor.

The question involved is a single question of fact, whether the complainants, when they took their mortgage, had notice that Coe had given a prior mortgage to the defendant Mary Hopper.

That Coe had given Mrs. Hopper a prior mortgage is proved by the production of that mortgage and the testimony of the subscribing witness to it, who, being a Master in Chancery, also took the acknowledgment of the execution of it. This mortgage and the acknowledgment are dated March 2d, 1846. The mortgage to the complainants is dated April 23d, 1846. The question is, had the complainant’s notice of this prior mortgage when they took theirs ?

John Coe, the man who gave both these mortgages, and who is, clearly, as I apprehend, a competent witness for the purpose, testifies distinctly that he informed Van Wagenen, one of the complainants, before ho executed the complainant’s mortgage, that he had given a mortgage on the same premises to Mrs. Hopper. An effort has been made, on the part of the complainants, to overcome this testimony by calling witnesses to impeach the character of Coe for truth. I do not think it necessary to examine particularly the nature and amount of the testimony produced by the respective parties against and in support of Coe’s character for truth. I will only say that, in view of the testimony in support of his veracity, I think it would be going very far to deny to the party whose rights depend on his evidence the benefit of it upon testimony of the nature of the impeaching testimony offered in this case.

But I think the cause may be satisfactorily decided by a careful examination and comparison of the testimony of Coe, on the part of Mrs. Hopper, and the testimony of A. B. Woodruff, on the part of the complainants.

Coe testifies, that, in the morning of the day on which the mortgage to the complainants was given, he told Van Wagenen he had a house and lot in Passaic street, Paterson, which he wanted the complainant to take, and release him from his liability to them; which Van Wagenen declined. That Van Wagenen then asked him whether he had any other property with which to secure him. That he answered, no other except his farm. That Van Wagenen then asked him how much he gave for it, and he told him. That Van Wagenen then asked him how much it was incumbered for, and witness told him he had given a mortgage on it to Terhune, from whom he bought it, for $2,500, and a mortgage to Mrs. Hopper for the payment of $50 a year. That Van Wagenen asked him whether the mortgages he had given were recorded, and that he told Van Wagenen he did not know. That he had a further conversation with Van Wagenen in the after part of the day. Van Wagenen wanted him to give a mortgage for the whole amount he owed the complainants i that he was satisfied to take it. After this. Van Wagenen had a mortgage drawn up; and Van Wagenen and A. B. Woodruff came to his house. That the mortgage was read over, and the Terhune mortgage was mentioned in it, but the mortgage to Mrs. Hopper was not. That he told them he would not sign .it unless they were both mentioned in it. That Van Wagenen then showed him a paper, to show that there was nothing on record but the Terhune mortgage. That he then told Van Wagenen, that he-wanted Van Wagenen to give him a paper to show that the Mary Hopper mortgage was given, or he might have trouble about it. That Van Wagenen said nothing in answer to this. That Woodruff said it would be an irregular way of doing business $ unless he signed the mortgage of his own free will it would be good for nothing. That the mortgage was signed and it ended there.

Mr. Woodruff, examined for the complainants, says, he went with Van Wagenen to Coe’s house, and was with them there during all the time until the mortgage was executed. He says nothing in contradiction of Coe’s statement as to what passed there in reference to the Mary Hopper mortgage. This is certainly remarkable if nothing was said by Coe showing that he had tgiven a mortgage to Mrs. Hopper. And further, Mr. Woodruff nowhere says in his testimony, that he had no notice of the mortgage to Mary Hopper. If he had no knowledge or notice of it, I cannot imagine that he would have failed to say so. This, in view of the testimony of Coe, is, I think, conclusive. Woodruff was acting for the conplainants; and if he had notice it was notice to them. The same reasoning proves that there is no good reason for doubting Coe’s statement that Van Wagenen had notice. It was certainly in the power of Mr. Woodruff,'if nothing passed in reference to the Mary Hopper mortgage while he and Van Wagenen were at Coe’s house, to have given a full and direct contradiction to Coe’s statements. His failure to contradict them, and his failure to say that he had no notice, decides the question, clearly, for the defendant Mary Hopper. Her mortgage is entitled to priority over that of the complainants.

Decree accordingly.