Opinion
03-09-1910
BROWN v. COLUMBUS.
Joseph Parker, for complainant. Edward Kenny, for Margaret C. Devoe and Irving J. Dorland. Edward S. Black, for Eliza J. Columbus.
Action by Annie E. Brown against Eliza J. Columbus. Judgment for complainant on terms stated.
Joseph Parker, for complainant.
Edward Kenny, for Margaret C. Devoe and Irving J. Dorland. Edward S. Black, for Eliza J. Columbus.
HOWELL, V. C. Jesse Columbus died prior to 1902, leaving a widow, Eliza J. Columbus, and a daughter, the complainant, Annie E. Brown, and seised of the tract of land in question in this suit, which by reason of his intestacy descended to Mrs. Brown, subject to her mother's right of dower. Mrs. Brown had been previously married to a man named Ferguson, by whom she had a son. Stephen J. Ferguson. Mrs. Brown testifies that in 1901 Ferguson's wife, who had left him, had had him arrested in New York in a matrimonial suit, in which he had been required to give security to pay his wife $6 a week for a year; that this year was about expiring in the summer of 1902, and that it was expected that proceedings would be taken by her against her husband in New Jersey, where it would probably be necessary for some one to be security for him; that Mrs. Brown, being a married woman, would not be a competent surety; and that, for the purpose of providing beforehand for means of release in case he should be arrested here, she on July 2, 1902, conveyed the premises in question to her mother, Mrs. Columbus, who was expected to become surety, to which she would be competent when qualified by the conveyance. The deed was recorded on July 5, 1902, in the proper registry office. At the time of this conveyance from Mrs. Brown to her mother, both 'Mrs. Brown and her mother, with Mrs. Brown's husband, resided on the premises. Mrs. Columbus remained there until January, 1908. Mrs. Brown and her husband are still in the actual possession of the premises.
At the time the title to the premises devolved upon Mrs. Brown by the death of her father they were mortgaged to a building and loan association. After the conveyance by Mrs. Brown to her mother, they between them paid the dues and interest to the building and loan association, so that at the time of the conveyance to Mrs. Devoe herein complained of there was owing upon the mortgage a little over $300. The general arrangement was that Mrs. Brown and Mrs. Columbus should contribute each $10 a week to keep down the payments to the building and loan association. This appears not to have been practicable at all times. Sometimes one paid more than the other, but it does not appear in the evidence how much either of them contributed. Mrs. Columbus says that whatever Mrs. Brown paid after the title went to her was paid by way of rent Mrs. Brown says that it was by way of payment to the building and loan association, although it was sometimes called rent in her conversations with her mother. Mrs. Columbus ceased to make any payments in August, 1907. After that date, Mrs. Brown paid the monthly dues and interest. In the month of January, 1908, Mrs. Columbus left the premises on account of differences between her and her daughter. She then placed the property in the hands of the defendant Dorland, a real estate broker, for sale, with instructions to sell it for what he could get. Mr. Dorland claims to have negotiated a sale to Mrs. Devoe, his sister, for the sum of $1,500, the greater part of which he has now paid to Mrs. Columbus. Eventually, and on March 18, 1908, Mrs. Columbus conveyed the premises to Mr. Dorland "in consideration of one dollar and other good and valuable consideration." He for a like consideration on April 15, 1908, conveyed the premises to Mrs. Devoe.
A little over a year prior to this transaction, and on November 2, 1900, and while Mrs. Brown and her husband and Mrs. Columbus were occupying the premises together, Mrs. Brown brought suit against Mrs. Columbus, in which she set up practically the same facts that are set up in the bill in the present case, and prayed, among other things, that the title to the premises might be awarded to her. This suit was suffered to He without substantial prosecution for upwards of a year. On March 17th notice was given by the solicitor of Mrs. Columbus that he would apply on March 24, 1908, to dismiss the billfor want of prosecution. This motion was heard and such proceedings taken thereunder that the bill was dismissed on May 1, 1908. In the meantime Mr. Borland was arranging to take the title to the premises under the agreement that he had made for its purchase from Mrs. Columbus, and on February 20, 1908, he applied to the Kearny Building & Loan Association for a loan of $2,000 on the premises. In the application he stated the value of the ground to be $600, the value of the buildings to be $2,700, the annual rent to be $270, and that the dwelling and stable had all the modern improvements. The property was examined by a committee of the building and loan association and the values stated by Mr. Dorland were ratified by them. One of the witnesses says that the property is worth $3,500. When the first bill was filed, a notice of lis pendens was put on the Hudson county records, and this was an obstacle in the way of completing the loan transaction. Mr. Dorland was in court at the time the bill was ordered dismissed, and, having heard that the suit was ended, he proceeded with all convenient speed to close the transaction with Mrs. Columbus without waiting to see the bill actually dismissed. Counsel for Mrs. Brown did not wait either. Three days before the first bill was dismissed, and on April 28, 1908, he filed the present bill which prays that the deeds from her to her mother, from her mother to Dorland, and from Dorland to Mrs. Devoe might be declared void as against her, and that the same be set aside. No objection is made to the second suit on the ground of irregularity.
I am convinced that the transaction between Mrs. Brown and her mother ought not to stand. It was either a gift, as Mrs. Columbus alleges, or it was for the purpose of providing security for young Ferguson, as Mrs. Brown claims. It was without consideration, and was made under circumstances which can only be explained upon the theory advanced by Mrs. Brown. The fact that Mrs. Brown retained possession negatives the idea of a gift. She not only retained possession, but according to her statement, and that I think is the credible one, she aided in paying the dues to the building and loan association. To make a gift effective, the evidence should show, not only a donative purpose, but also an intention on the part of the donor to divest himself of the possession of his property, and it should be inconsistent with any other intention. Taylor v. Coriell, 66 N.J.Eq. 262, 57 Atl. 810. That was a case which involved the question of a gift of personalty. I know of no distinction between gifts of personalty and gifts of realty so far as this particular point is concerned. Besides, Mrs. Brown by this conveyance stripped herself of all the property she owned. She had no independent advice as to the effect of the conveyance, nor did she reserve any power of revocation. Albert v. Haeberly, 68 N.J.Eq. 664, 61 Atl. 380, 111 Am. St. Rep. 652, resembles in its facts the case at bar. There there was a gift by a young woman to her stepmother while she was a member of her stepmother's family, and was treated as a daughter. The daughter had no independent advice as to the effect of the instrument which she signed, and the instrument itself contained no power of revocation. The Court of Errors and Appeals affirmed a decree which set the conveyance aside. The only difference between that case and this is the difference between the ages of the donors. The story told by Mrs. Columbus about her acquisition of the property does not satisfy me that she is telling the truth concerning it. She says it was a voluntary gift; that there were no negotiations between her and Mrs. Brown in relation to it; that Mrs. Brown wanted to get rid of the property because it was so heavily incumbered that she was unable to carry it, and therefore was willing to give it to her mother; and that in the face of the fact that the property appears at that time to have had an undoubted equity worth considerable, which she might have sold. Her story about Mrs. Brown's desire to get rid of the property because it cost too much to carry it is met and repelled by the fact that Mrs. Brown was able to make her monthly contributions to the building and loan association for years after she had made the conveyance.
The next question is whether Mrs. Devoe can be placed in the shoes of Mrs. Columbus, and charged with the knowledge of facts that were and are binding upon Mrs. Columbus. I premise that Mr. Dorland was Mrs. Devoe's agent in the transaction, and that whatever knowledge came to him or is chargeable to him must be imputed to Mrs. Devoe. Mrs. Brown was in possession. After her mother left in the early part of 1909, she and her husband were in exclusive possession. Possession according to well-known principles is notice to any one who deals with the title or possession. Mrs. Brown's possession was notice to Mrs. Devoe in addition to any notice that may be imputed to her through the agency of her brother. A person in possession of land thereby gives notice to the world not only that he is in possession, but also of the character thereof and the claim that he makes. This much notice can be charged to Mr. Dorland and Mrs. Devoe before the contract for the purchase of the premises was executed. After the contract had been executed, and before it was completed by the conveyance, he knew of the first bill and of the lis pendens filed thereunder. He had a right then to insist that Mrs. Brown's claim should be extinguished, and to refuse to accept the title unless it was. He decided to complete the transaction and he did so at his peril.
In addition to the facts already noted, I think the notice with which Mr. Dorland is chargeable is brought home to him in a singular manner by the fact that he was gettingthe property for less than half what he thought it was worth. He agreed to pay $1,500 for it. Immediately thereafter he made an application in writing to the building and loan association for a loan of $2,000 on mortgage in which be valued the property at $3,300, which valuation was confirmed by the building and loan association's committee. Apparently he was willing to take his chances of getting title for the sake of the advantage which he would derive from his bargain.
In my opinion, therefore, Mrs. Devoe is chargeable with notice of Mrs. Brown's claim, and she is consequently not entitled to any greater consideration than Mrs. Columbus would be.
The result is that the conveyances in question must be set aside and the title awarded to Mrs. Brown, but it must be on terms. Mrs. Columbus advanced moneys to the building and loan association for dues and interest. She also paid some of the annual taxes and possibly the insurance premiums, though there is no evidence as to the latter. Mrs. Brown ought not to get the title without repaying all the sums so advanced for her benefit. Inasmuch as Mrs. Devoe made payment of the purchase money, or a large part of it, to Mrs. Columbus, whatever moneys are chargeable against Mrs. Brown should go first to reimburse Mrs. Devoe, as far as the same will extend. If there is anything left, it should go to Mrs. Columbus. If counsel cannot agree on the amount which Mrs. Brown should pay, there will be a reference to a master to ascertain the same. I will advise a decree in accordance with these views, but it must be without costs.