Marks v. Pell

The Chancellor. The bill is in the nature of a bill to redeem a mortgage alleged to have been given in January, 1785, by Joseph Latham to Gilbert Pell. The answer sets up an absolute purchase by a deed in fee, and denies the existence of the mortgage. The plaintiffs undertake to establish the charges in the bill by parol proof. This proof consists of confessions made by Gilbert Pell, that the deed [598] in question was taken and considered by him as a mortgage 5 and that he kept an account of the rents and profits for a number of years, and then destroyed all those accounts, to-_ gether with a certificate in the nature of a defeasance, given by him at the time of the execution of the deed. I am of opinion that the proof is not sufficient to support the bill. My objection is to the nature of the proof. It consists wholly of certain confessions made by Gilbert Pell in certain conversations. There is not a single fact, exclusive of those confessions, in support of the charge. Gilbert Pell takes a deed, in fee, of the lot in question, in January, 1785, and enters immediately into possession. A subscribing witness to the deed is examined, and he is the person who drew the deed. He has no recollection or knowledge of any certificate, or receipt, qr other paper in the nature of a defeasance, though it was understood that Latham was indebted at the time to Pell. This deed was, as he states, freely and understandingly executed ; and it was acknowledged, in February, 1785, by the grantor, before a judge of the supreme court. From that time to the death of Gilbert Pell, in 1803, he possessed and used the property as owner, and since his death the defendant, as devisee, has also possessed and used it as owner. Here is a period of near 30 years, in which the premises in question have been enjoyed under that deed; and it would appear to me to be very dangerous to destroy that fitle by means of certain parol declarations alleged to have been made by Gilbert Pell, in his lifetime, and which no person now living has the means to contradict. I agree to the doctrine in the cases cited, that it is competent to "Show, by parol proof, that the deed was taken as a mortgage, and that the defeasance was destroyed by fraud or mistake ; and I agree further, that length of time is no bar to a fraud, or to redemption of a mortgage, where the mortgagee has treated it all the time as a mortgage, or where it was originally agreed that he was to enter and keep possession until he [599] was paid out of the profits. (1 Vern. 418. Prec. in Chan. 526. 1 Powell on Mart. 411. Cases temp. Talb. 61. 2 Ves. jun. 84. 1 Day’s Rep. 139.) My difficulty is, that there is not the requisite legal proof of any of these allegations. _ There is not a single voucher or document in writing, nor a single fact, or act, or deed of Gilbert Pell, that supports the charges. The whole rests on the naked, unassisted confessions of Pell, made to, or in the presence of, certain witnesses, about 17 years after he had been in the peaceable occupation of the premises as apparent owner. It was once observed in the supreme court, (6 Johns. Rep. 21.,) that acknowledgments of the party, as to title to real property, are generally a dangerous species of evidence; and though good to support a tenancy, or to satisfy doubts in cases of possession, they ought not to be received as evidence of title, as it would counteract the beneficial purposes of the statute of frauds. That doctrine strikes me as just and sound, and principles are essentially the same in both courts. The evidence of the existence and destruction of the receipt, operating as a defeasance, is quite lame, even from the confessions of Gilbert Pell. The proof is rather negative, and proceeds more from his silence than his acknowledgment; There is another objection to the charge : these alleged confessions were made to Joseph Latham, in 1802 ; and yet, at the same time, Gilbert Pell refused to render any account, and demanded 2,500 dollars for the lot. This was inconsistent with his other confession of right and equity in Latham. But why did not Latham, then, prosecute for the land ? He could have made Pell disclose the truth by his answer in this court. Instead of which Latham, who had already abandoned the lot to Pell for 17 years, goes abroad, and leaves his claim dormant, and dies in 1806 ; and the claim is now, after many years, and for the first time, brought forward in this court by his representatives against the representative of Pell. It rests entirely on certain conversations, which are extremely liable to be misunderstood or per [600] verted ; and yet are very unassailable, as they are sworn to-' under the cover of time, and the death of Pell. It appears to me that, under all the circumstances’ of this case, it would be settings dangerous precedent, to give effect to this stale claim, upon such uncorroborated and loose confessions. I shall, accordingly, dismiss this bill, but without costs. Decree accordingly.