Opinion
04-16-1936
BRAND v. QUINN et al.
Cohn & Kohlreiter, of Paterson, for complainant. Dolan & Dolan, of Newton, for defendants.
Bill by Mary Brand against Albert Quinn and others.
Bill dismissed.
Affirmed by the Court of Errors and Appeals in 190 A. 324.
Cohn & Kohlreiter, of Paterson, for complainant.
Dolan & Dolan, of Newton, for defendants.
EGAN, Vice Chancellor.
The complainant obtained a judgment against the defendants, Albert and Anna Quinn, in the New Jersey Supreme Court, for $1, 199.02, and $56.22 costs. Execution was issued thereon. It was not satisfied. Discovery proceedings were then initiated through a bill filed in this suit against the defendants, Albert and his wife, Anna, and the father, brother, and sister of Anna. These proceedings resulted in a decree against the defendant Quinn; and the conveyances made by him and his wife were set aside as fraudulent. One of the tracts of land involved, was encumbered by a mortgage held by William and Matilda Schaube. They, in March, 1935, foreclosed their mortgage, and at the sheriff's sale, purchased the premises. They, subsequently, conveyed the premises to John T. Madden, the defendant. Madden is a nephew of Dolan & Dolan, solicitors of the defendants, and is employed in their office.
The complainant's judgment against the Quinns remains unsatisfied. Madden's title is challenged by the complainant who, in effect, contends that it belongs to Quinn, and therefore is chargeable with the lien of complainant's judgment. The consideration paid to the Schaubes for the deed was approximately $3,300.
Charles T. Downing was the attorney who represented the Schaubes at the time of their conveyance to Madden. He was called as a witness for the complainant and testified that negotiations for the purchase of the Schaubes' property were conducted by Messrs. William A. Dolan and LewisP. Dolan, solicitors aforesaid, who presented their check for the full amount of the decree in the foreclosure suit. His testimony stands uncontradicted.
Edgar H. Douglass, an officer of the Sussex & Merchants National Bank of Newton, N. J., a witness for the complainant, testified that at, or about, the time of the conveyance, a promissory note signed by Albert Quinn as maker, indorsed by Dolan & Dolan, was discounted at his bank by the firm of Dolan & Dolan. He said the bank extended no credit to Quinn on the note; and that it was given solely to Messrs. Dolan & Dolan, from whom they expected payment. Quinn had no account in the bank. Douglass stated that payments, in reduction of the note from the original sum of $3,000, were made by Dolan & Dolan, and that they paid the note in full.
William A. Dolan, a member of the law firm of Dolan & Dolan, testified that prior to the conveyance to Madden, he told the defendant Albert Quinn, the former owner of the premises, that he and his brother, Lewis P. Dolan, would purchase the premises from the Schaubes for $3,000; and that they would not pay any greater amount. It appears that Quinn subsequently paid William Dolan a sum sufficient to make the difference between the amount which Dolan said he would pay ($3,000) and the amount of the decree obtained by the Schaubes in the foreclosure proceedings. Then the Dolans arranged with Downing, the attorney of the Schaubes, to purchase the property from his clients. At their request, Downing had the title to the premises placed in the name of the defendant John T. Madden. The Dolans made an agreement with Albert Quinn to the effect that they would have the title to the premises conveyed to him if he paid them a rental of $50 each month until the sum of $3,000 was paid; and, in addition, a charge for services rendered to Quinn by the Dolans.
I fail to find any evidence of fraud in the acquisition of the title by Madden. Three thousand dollars of the purchase price of approximately $3,300 was borrowed from the bank on the Dolans' credit and they finally paid the full amount of $3,000. There is no evidence that the Quinns paid any part of the loan. This evidence was supplied by witnesses called by the complainant and forms part of her case. There is no evidence to show that the Quinns have any greater interest in the title held by Madden, beyond the monthly rental paid by them under the agreement with the Dolans. There is no evidence in contradiction of the testimony on the monthly payment arrangement.
Under the circumstances, since there is no evidence of fraud, it cannot be presumed; it must be proved. There may be an appearance of suspicious circumstances surrounding the transaction between the Quinns and the Dolans, but they do not amount to fraud; and they cannot be accepted as conclusive of fraud. Hersh v. Levinson Brothers, 117 N.J.Eq. 131, 174 A. 736; Wiley v. Wirbelauer, 116 N.J.Eq. 391, 174 A. 20; Security Acceptance Corporation v. Donegani, 113 N.J.Eq. 281, 166 A. 209; Wolosin v. Iavarone, 112 N.J.Eq. 409, 164 A. 488. There is no evidence of a conspiracy to prevent a satisfaction of complainant's judgment; nor is there any evidence of a design to hinder or defraud her. Madden holds the title free of the lien of complainant's judgment. I shall, therefore, advise an order dismissing the bill.