Gallup v. Henderson , 2 Silv. Sup. 519 ( 1889 )

Barnard, P. J.

The general inference from the evidence in this case is very strong against the defendant Henderson. The plaintiff was nearly 80 years of age, and the first transaction between the parties was an agreement upon a foreclosure of a mortgage, whereby the defendant, who was the attorney, was to have all the property brought over $3,000. The attorney claims to be entitled to over $3,000 on this transaction. With the plaintiff’s $3,000 a bond and mortgage, given by Caroline J. Haddon, and owned by one Dennis, was assigned to plaintiff. Henderson claims to own this mortgage, also, and that the reason why the title was taken to plaintiff was that Haddon’s wife was his niece. Subsequently to the taking of the mortgage, and in May, 1884, the defendant’s wife bought a tax-title apparently superior to the mortgage, a lease for 1,000 years. In April, 1885, the foreclosure suit was commenced in plaintiff’s name. The defendant Henderson was the attorney, and his then partner was attorney for his wife, and she set up a superior title. The tax-lease and the property was sold subject to it. Then a deed was given to plaintiff and Mrs. Henderson by the referee, and the condition of sale was subject to the tax-title. The defendant Henderson endeavored to get the referee’s deed made out to the two ladies in joint tenancy. It was also part of the defendants’ case that the defendant Henderson had an agreement with the plaintiff to pay $1,000 a year for legal services to be rendered. The plaintiff denies the agreement on the foreclosure. She denies that the Haddon mort.gage was held by her for Henderson. She denies the $1,000 a year. The trial judge properly found against the defendants. The plaintiff was very ■old. The defendant was her lawyer, and they lived together. The transaction is so inequitable that as between strangers such a finding would be justified. The judgment should therefore be affirmed, with costs.

Pratt, J., concurs.

ON MOTION FOR NEW TRIAL.

Barnard, P. J. The motion for a new trial is based upon a claim that the defendants have discovered evidence since the trial which is material, and upon which a different result will be likely. The evidence consists of two witnesses. One is Andrew J. Cripsey. The action is brought to set aside a reformed deed, and the plaintiff’s case was tried upon the theory that it was her mortgage which was foreclosed, and that she should have had the deed. It was claimed by the defendant that the mortgage was really his, and that the plaintiff only nominally held the title. Cripsey’s affidavit is entirely at war with this claim. He stated that he met the parties on the ferry-boat after the sale, and that the plaintiff said “she was glad that she and Mrs. Henderson had made the purchase, and that she hoped it would turn out to be a good investment.” What had she to do with it if Mr. Henderson testified truly on the trial that she held the title for him? The affidavit of Butcher is equally unsatisfactory. He says he overheard a conversation in an adjoining room, he being an inmate of defendant’s office. That one Brown advised Henderson to accept the plaintiff’s proposition “in case the debts did not warrant the payment of too much money.” He heard plaintiff say in presence of Hash, in discussing the matter with the same memoranda book which was present at the Brown interview, that Mrs. Gallup said she would give the defendant all over the $3,000; that she was satisfied that Henderson should take in case of her death any property she left rather than her husband or relations should get it. Henderson replied that he would give all the money she wanted. This interview was to the effect further that Henderson would guaranty the $3,000. If a new trial should be granted, no different result could be expected with this new evidence, in view of the relationship of the parties, and of the hard and inconceivable motive of the contract itself. There is no question but that the plaintiff tells the exact truth about the dealings of the parties. The claim to her was always apparently honorable, and any deviation in the papers, therefore, were for an ultimate purpose of which she was not designed to be cognizant. Order affirmed, with costs and disbursements.

Pratt, J., concurs.