Opinion
09-01-1926
TOMCSIK et ux. v. KRAMER et al.
Leo S. Lowenkopf, of Perth Amboy, for complainants. Daniel H. Applegate, of Red Bank, and David M. Satz, of Newark, representing Frederic M. P. Pearse, of Newark, for defendant Kramer. Leo Goldberger, of Perth Amboy, for defendant Metuchen Realty & Improvement Co.
Suit by J. Tomcsik and wife against Edward Kramer and another. Matter referred to the master for an accounting, and a decree for complainants advised.
Leo S. Lowenkopf, of Perth Amboy, for complainants.
Daniel H. Applegate, of Red Bank, and David M. Satz, of Newark, representing Frederic M. P. Pearse, of Newark, for defendant Kramer.
Leo Goldberger, of Perth Amboy, for defendant Metuchen Realty & Improvement Co.
BERRY, Vice Chancellor. The complainant, Tomcsik, has made a very definite statement up to this time to this effect: That he owned four lots; that in 1917 he traded these four lots to the Metuchen Realty & Improvement Company, and took five lots and some four hundred and some dollars in exchange; that he only got a small portion of that money —something less than $100—because he owed Greenbaum the difference, and Greenbaum kept that difference to repay him what he owed him, and he received a deed for five lots, which was given to him in the lawyer's office; and that deed he put in his pocket and kept there. The deed was unrecorded. Hekept it for two months. After that he went back to Greenbaum and borrowed $300, and then Greenbaum asked him for security, and he gave him the unrecorded deed. Subsequently he went to Kramer and borrowed $300, for which he got the check of $297, and with that money he intended to build an addition to his house. He lost the money, or a part of it at least, and he went back to Kramer for $300 more, telling him that he wanted to pay that money to Greenbaum, and pay off Greenbaum $300 that he owed him. He claims that Kramer paid the $300 direct to Greenbaum, and that he never got it. He also said that he made an application for a building and loan association mortgage. He does not know very definitely why that loan was not granted, but he agrees that he did not get it. He afterwards borrowed another $100 from Kramer, and all this time, so he says, Greenbaum had the unrecorded deed wbich he got when he exchanged the lots. That is the extent to which the testimony goes, as I understand it now. Whether he is right or not, will depend upon what some of the other witnesses say, I suppose.
The major portion of the facts in this case I recited this morning. I am not going to recite these particular facts. In announcing my decision, the stenographer may repeat them for the purpose of this record at this time.
In addition to the facts that I recited, it appears by the testimony and other evidence submitted that the complainant had a loan accountwith Greenbaum for the Metuchen Realty Company, and had a book in which were recorded payments on account of that loan account as they were made. This book was introduced in evidence. There was also an account book showing payments made to the defendant Kramer. It appears that the defendant Kramer made some advances to the complainant, and in 1910, according to his own testimony, and for his own protection, he induced the complainant to execute a paper, which has been introduced in evidence and marked Exhibit D2, by which the complainant assigned his right, title, and interest to the five lots in question to the defendant Kramer.
From my own examination of the complainant, I am satisfied that neither he nor his wife understood the purport of that paper when it was executed. The defendant Kramer testifies that he had it prepared by a lawyer; that he did not have the lawyer explain the meaning of the paper to the complainant, but that he sent it to the complainant by his son, and two days afterwards the complainant and his wife came to Kramer's store and executed the paper. Beyond question, these complainants, who are of low mentality, unfamiliar with the English language, and difficult to understand, did not appreciate the purport of that assignment when they made it. It appears that, after that assignment was executed, the defendant Kramer paid to the Metuchen Realty Company the sum of approximately $260, and obtained from the Metuchen Realty Company a deed conveying the five lots in question to Kramer. An inspection of the deed plainly discloses the fact that the date of the deed and the name of the grantee, and the date of the acknowledgment and the name of the grantee, as it appears on the indorsement of the deed, have all been changed since the deed was originally written. This deed Kramer says he received through the mail from the Metuchen Realty Company, and afterwards had it recorded in the Middlesex county clerk's office. This, to my mind, is the strongest corroboration of the complainant's story which appears in the Whole case; the complainant claiming that he received the deed in the lawyer's office at the time the exchange of properties was made, and this testimony stands undented. He states that this deed was received and placed by him in his coat pocket, and that he retained possession of it for some months afterwards, until he obtained a loan from Greenbaum or the Metuchen Realty Company, when he delivered it, the deed never having been recorded, to Greenbaum. Under these circumstances it seems to me that I have no alternative but to advise a decree in favor of the complainant, directing in that decree that an account be taken of the moneys paid out by Kramer on account of this property, the moneys received by him for rents or otherwise. The record title still remains in Kramer, although there appears to be a contract of sale with the Metuchen Realty Company. The Metuchen Realty Company certainly had notice of the claim of the Tomcsiks, because, under the facts as I find them, that company had possession of Tomcsik's deed, and I believe changed the name of the grantee in that deed, or rather erased the name of the grantee in the deed and inserted Kramer's name in it when it was mailed to him. The rule in such cases is too plain to require any citation of authorities. At most, the deed which the defendant Kramer has, and this assignment, even if it were a valid assignment, would constitute, in my judgment, an equitable mortgage. The rights of Tomcsik could not be foreclosed without foreclosing that equitable mortgage. I will refer this matter to a master for the purpose of taking an account, as I have already indicated, and I will advise a decree for complainants.
The testimony on the part of Mr. Kramer is that he advanced $297, $300, and an additional sum of $263.37, and $100 in addition. While there is some doubt in my mind as to the correctness of that amount, yet I feel that by the weight of the testimony, not in the number of witnesses, because they are evenly balanced, but I am rather inclined to believe that Mr. Kramer advanced the $300 in cash which he says he advanced. Although the complainant denies that, I think he did. I think Mr. Kramer is telling a straight story on that. So that I think there is no question that Mr. Kramer is entitled to a credit for the four different sums he paid; namely, the $297, the $300, the $263.37, and the $100. In addition to that, he is entitled to a credit for whatever he has paid by way of repairs, interest, or insurance. He is entitled to interest on his own advanced, including the taxes which he has paid. Whatsoever he had expended in money for repairs, he is entitled to that. I will allow him for actual expenditures, but I cannot allow him for anything else.