Hunterdon Co. New Jersey Court Records, Arnwine vs Carroll, 1830

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by New Jersey Court of Chancery, New Jersey Prerogative Court, 
New Jersey Court of Errors and Appeals, George Blight Halsted 
- 1854

886               ARNWINE v. CARROLL                  [JUNE

Jacob Arnwine, Appellant, and John A. Carroll, Respondent.

  The case is Chanceryisreported ante, page 620.
 
  W. Halsted for Appellant, and P. D. Vroom for Respondent.

  The President, (Chancellor Williamson.)  The bill al-
leges that on the 15th day of Sept., 1830, Elizabeth Arnwine, the 
mother of the appellant, and the grand-mother of the respondent, 
conveyed to the respondent a valuable tract of land in the town-
ship of Amwell, in the County of Hunterdon, of the value of six 
thousand dollars; that the consideration of the said conveyance 
was the sum of two thousand dollars; that this consideration 
money was not paid, but that at the time of the conveyance it 
was the agreement between the parties to it, that the grantee 
should pay the consideration money, upon and after the death of 
the grantor, to the appellant, in such sums and at such times as 
the appellant might require; that in the mean time, until her 
death, grantor should enjoy the possession of the property; 
that the deed was delivered, and to secure to the grantor the 
possession until her death, the grantee executed to her a lease.
  Elizabeth Arnwine is dead, and the complainant, by his bill, 
now calls for the payment of the consideration money of two 
thousand dollars.
  This is the appellant's case, as it is made by the bill.  It is 
fully denied by the answer, and the burthen of proving it rested, 
of course, upon the complainant in the bill.  If the case is not 
proved, it is unnecessary to decide, whether, or how, the princi-
ples of law discussed on the argument are applicable to the 
case.  Whether this is to be considered a trust, or what kind of 
a trust, or whether it should be in writing, are questions of no 
importance, in deciding this controversy, if the appellant has not 
proved his case.
  It is evident that no monied consideration was paid by the



1853]             ARNWINE v. CARROLL.                   1887

grantee for the conveyance.  Connelees Lake drew the deed, at
the request of the grantor, and witnessed its execution.  He
says, he put the consideration of $2,000 in the deed, at the
grantor's request, but saw no money paid.  At the time of the
execution of the deed, John A. Carroll executed the lease for life,
for the same land embraced in the deed, to Elizabeth Arnwine.
These papers were exchanged between the parties to them.  The
subscribing witness testifies to nothing as to the consideration
money, or how it was paid; nor, from his testimony, does it 
appear, that the name of the appellant, Jacob Arnwine, was men-
tioned, at the time of the execution of the papers, except, that
the witness says, that about the time of the execution of the deed,
there was something said by the grantor, that Jacob should have
something more than was given him by the will.  The will was 
made nearly two years after the deed was executed.  In his
answer, the respondent admits, the consideration money men-
tioned in the deed was not paid, and avers its true consideration
to have been natural love and affection.  There is no positive
evidence to prove this allegation, but there are strong corrobora-
ting circumstances to sustain it.  The deed was immediately
delivered on its execution.  The grantor received from the
grantee a lease for the premises during her life, and both went
into possession.  Two years afterwards, the grantor made her 
will, devising all her estate, real and personal, except six lega-
cies, of five dollars each, to her grand-son, the grantee, and not 
mentioning the farm in her will.  They lived together until the 
death of Mr. Arnwine, which was a period of seven years after
the deed was executed; and we have the lease executed cotem-
poraneously with the deed, and the consideration money named
in it, the sum of $2,000, corresponding with the sum in the deed
as the consideration thereof.  The appellant makes no effort to
prove, by any one, that at the time of the execution of the deed,
or of its delivery, there was any agreement as to the payment of
the consideration monies of the character alleged in the bill.
  The appellant, to support this allegation, so important to him,
and which, indeed, is the foundation of his case, relies upon the
declarations of Elizabeth Arnwine, made subsequent to the exe-


888                ARNWINE v. CARROLL.                 [JUNE

cution of the deed, in the presence of the respondent; and upon 
declarations and admission made, in various ways, and at dif-
ferent times, by the respondent himself.  There is considerable
testimony of this character, but it all amounts to nothing, when
submitted to a careful examination.
  In reference to this testimony, it is to be noticed, in the first
place, and as a matter of vital importance to its applicability and
efficiency, that not a declaration of Elizabeth Arnwive, or a de-
claration, or admission, of the respondent, of any such promise
or agreement on the part of the respondent as that alleged, was
proved to have been made in connection with, or in reference to,
the deed in question, or its consideration.
  Take the testimony of Elizabeth Warford, the mother of the
respondent, and of Margaret Snooks, the complainant's daugh-
ter.  These are the important witnesses for the appellant.  It
was not argued by counsel, that the case could be sustained
without their testimony.
  Elizabeth Warford testifies, that she was at the bedside of
Elizabeth Arnwine at her last sickness.  The respondent was 
there.  She says: "Then she called defendant up to the bed-
side, and likewise called me to come and site down by her, which
I did.  She told me, that she found defendant a little honry in
little things that he was to do.  Now, says she, he has promised
to pay complainant two thousand dollars.  She said, she was 
now at her last sickness; that she would never live to get well.
She said to me, Betsy!  I want you to see to him, (and defendant
was present.)  Defendant said, O! grand-mother, I will pay
uncle Jacob two thousand dollars, honestly."  In this conversa-
tion, not a word was said about the deed.  No allusion was
made to adeed; for, on the morning after Mrs. Arnwine's death,
this witness expressed her surprise upon hearing from the re-
spondent that he had the deed in question.  A conversation
between this witness and the respondent is relied upon.  This
conversation referred to the promise which the witness heard the
respondent make to his grand-mother, and being reminded by her
of that promise, not in a very kind way, he neither admitted or
denied it.  How can what this witness testifies to be construed


1853]                ARNWINE v. CARROLL.                 889

into a promise, or the admission of a promise, on the part of the
respondent, that the consideration of the deed was, in whole, or in
part, that he should pay to Jacob Arnwine the sum of two thou-
sand dollars.
  Margaret Snooks' testimony as to a promise on the part of re-
spondent, is not as strong as that of Elizabeth Warford.  Not 
one word was said in her presence, either by Elizabeth Arnwine,
or Carroll, respecting the deed.  If any such promise, as that 
was made, it was a mere nudum pactum, and cannot be enforced
either at law, or in equity.  It falls very short of proving the
case made by the bill, that the consideration of the deed was
two thousand dollars, to be paid the appellant, upon, and after
the death of his mother, in such sums as he might require.
  A promise, by respondent, to pay the appellant two thousand
dollars, or an admission of such a promise, is testified to by
several witnesses; but there is not one particle of, either positive 
or circumstantial evidence, to connect such promise, or admis-
sion, with the deed.  The only circumstance, of any connection,
or relationship, between the promise and the consideration ex-
pressed in the deed, is the fact, that there was a correspondence 
in the amount of the money named.  The consideration of the deed
was $2,000.  The promise was to pay $2,000.  Admitting the
promise, then, to be satisfactorily proved, it can entitle the appel-
lant to no relief.  To make out his case, upon which he relies,
he must go a step further, and must prove, that the consideration
of that promise was the deed, made and executed to John A.
Carroll by Elizabeth Arnwine.  Having failed in this, the Court
is not called upon to determine, whether, if the case made by the
bill had been proved, they could have afforded the appellant any
relief in this suit.
  The decree of the Chancellor must be affirmed, with costs;
and the record remitted, that the cause may be proceed in
according to law.



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