Opinion
08-03-1900
SCHELLINGER et al. v. SELOVER et al.
S. H. Richards and Thomas E. French, for complainants. J. B. Hoffman, for defendants.
Action for partition by Sarah A. Schellinger and others against John C. Selover and others. The bill prays a partition or sale of several tracts of land situate in Cape May county. The complainant claims to be the owner of an equal undivided seventh part of the premises, and makes defendants the other tenants in common. There is but one question in dispute between the parties, and that relates to two of the tracts sought to be partitioned or sold, one containing 14 acres, 2 rods, and 8 perches, and the other 15 acres, 2 rods, and 21 perches. Richard Cresse was the common ancestor, the owner of both these tracts in fee simple, and died intestate in 1846, leaving, him surviving, six children, his only heirs at law, namely, Richard, Israel, John, Elizabeth Nickelson, Rhoda Souder, and Mary Selover. The heirs appear to have arranged a voluntary partition of Richard Cresse's lands with the aid of Joshua Swan, Jr., and Humphrey Learning, and upon their allotment the property was divided into six portions, five of which were conveyed to the heirs other than Mary Selover, and her portion, which consisted of the above-named two lots, was by her brothers and sisters conveyed, not to Mary, but to her husband, Abraham Selover. These conveyances were made in March, 1846, and recorded in April, 1847, and passed to Abraham Selover five undivided sixth parts of the legal estate in the two lots in question. The other undivided sixth remained in his wife, Mary Selover. The present partition suit is between the children and heirs at law of Abraham and Mary Selover. Abraham Selover died intestate in March, 1862, leaving, him surviving, his widow, Mary, and his children and only heirs at law, the complainant Sarah A. Schellinger and the defendants John C. Selover, Richard C. Selover, Matthew M. Selover, Hannah M. Selover, Soiners H. Selover, and Martin V. Selover. The widow, Mary Selover, survived until May, 1894, and then died intestate, leaving, her surviving, her heirs at law,—her children, the complainant Sarah Schellinger and John C, Richard C, Matthew M., Hannah M., and Somers H. Selover, and her grandchildren, the children of Martin V. Selover, who, though he had survived his father, Abraham Selover, and was one of his heirs, had predeceased his mother, Mary Selover, and therefore could not have been one of her heirs. The title to the two lots in question as to five undivided sixth parts thereof had remained in Abraham Selover, under the partition deed above referredto, from 1846 until the time of his death, in 1862, without attack. From the time of his death, in 1862, until after the death of Mary Selover, in 1894, nothing appears to have been done which disputed the validity of the partition deed to Abraham Selover. Decree for defendants.
S. H. Richards and Thomas E. French, for complainants. J. B. Hoffman, for defendants.
GREY, V. C.The validity of the deed to Abraham Selover appears to have been attacked for the first time by the present partition suit, begun in 1895, about 49 years after the disputed deed was made. The object of this litigation is, by obtaining a decree that the lands in question are part of the estate of Mary Selover, to subject them to the payment of her debts. The justification for invoking the aid of this court is that, the objection being the correction of a mistake in a deed, the parties could, in a court of law, have no remedy. If any relief can be grant-ed, the parties have selected the proper forum. Read v. Huff, 40 N. J. Eq. 233. The complainants' allegation is that Mary Selover, being one of the heirs of Richard Cresse, released to her fellow heirs her interest in the lands allotted to them, in consideration that they would release to her their interest in the two tracts above named, but that by mistake the deed of release, which should have been made to her, was made to her husband. The defendants, by their answers, deny that there was any such mistake, so that the complainants are put to the proof of the matter alleged as the basis of their claim for relief. No testimony has been offered to show there was actual mistake in the making of the deed in question. The whole argument of the complainants rests upon their claim that, because Mary released to her fellow heirs at about the same time that they conveyed their shares in the two lots to her husband, there must have been a mistake in the insertion of her husband's name, and not Mary's, as grantee in the deed from her brothers and sisters. There is no proof, other than inferential, that the consideration of the deed to Abraham Selover was the making of the other deeds by his wife. It may have been that there was some valuable consideration which passed from Abraham to Mary as an inducement for her to allow the conveyance for her share to be made by her brothers and sisters to her husband. Brothers and sisters would not probably have so conveyed without their sister's consent But, if it be assumed that the deed to Abraham conveyed Mary's share, without valuable consideration proceeding from Abraham, it does not aid the complainants' contention. It is true that the general rule is well established that where a conveyance of lands is taken in the name of one person, and the consideration of the purchase is paid by another, the grantee will be presumed to hold the title in trust for the per son who paid for it until this presumption is overcome by proof to the contrary. But in family settlements the presumption is that a conveyance of a wife's share to a husband, or vice versa, is a gift, and this presumption can only be overcome by proof of fraud or mistake. Court of appeals in Read v. Huff, 40 N. J. Eq. 234. The case in hand was obviously a family settlement. No testimony attempts to prove that the deed for the wife's share to the husband was a mistake. On the contrary, the acquiescence of the wife in the transaction for 15 years during her husband's lifetime and for 32 years after his death— during the whole of the rest of her life—goes far to sustain the presumption which the law raises that the placing of the title to her share in her husband's name was no mistake, but a voluntary settlement. At that remote period (1846) it cannot be presumed, without proof that there were creditors of Mary Selover, who may yet have outstanding claims assertable against such a gift of her property. It must be held that Abraham Selover died seised of five undivided sixth parts of the two lots of land in question, and Mary Selover of but one undivided sixth part thereof. Of the two lots above named it is only the undivided one-sixth part which can be subjected to the payment of Mary Selover's debts. I will advise a decree for the defendants on the issue raised by the answers, with costs.