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Pope v. Bain

Decided: October 5, 1949.

HELEN POPE, INDIVIDUALLY, AND RANDOLPH POPE, DIANE POPE AND JOSEPH POPE, INFANTS THROUGH THEIR NEXT FRIEND, HELEN POPE, PLAINTIFFS,
v.
BETTY BAIN, (SOMETIMES KNOWN AS BETTY P. BAIN) AND HENRY BAIN, III, DEFENDANTS



Grimshaw, J.s.c.

Grimshaw

[5 NJSuper Page 542] This litigation is concerned with the title to three parcels of real estate in the City of Passaic. Two of the tracts, known respectively as 170 and 172 Lafayette Avenue, have houses upon them. The third parcel is a vacant plot approximately 182 feet deep by 175 feet front and rear and lying on the southwesterly side of Paulison Avenue. The original plaintiffs were the widow and children of Joseph Pope, deceased. After the institution of the suit several creditors of Joseph Pope intervened as parties plaintiff and joined in the prayers for judgment. The defendants are Betty Bain, sister of Joseph Pope, her husband, Henry Bain, III, and one Saul Cohen. Record title to 170 and 172 Lafayette

Avenue is in Helen Bain. Title to the vacant land on Paulison Avenue is in Saul Cohen. Mr. Cohen in his answer disclaimed ownership and alleged that he holds title as security for a loan of $5,000 made to Joseph Pope.

The charge is that Joseph Pope supplied the consideration paid for the various purchases and that he was the real owner of the property, though title was taken in the name of Betty Bain. Plaintiffs seek a judgment declaring that title to the property is held by the defendants in trust for the plaintiffs.

Joseph Pope died intestate on June 27, 1947. Title to 170 Lafayette Avenue was taken in the name of Betty Bain on August 11, 1944. Title to 172 Lafayette Avenue was taken in the name of Betty Bain on March 4, 1946, and title to the Paulison Avenue property was taken in the name of Betty Bain on June 28, 1945. On July 19, 1946, Betty Bain and Henry Bain, III, her husband, conveyed the Paulison Avenue property to Saul Cohen.

From the evidence the following facts appear:

In 1944, Joseph Pope consulted one Murray Brussel, a business broker, with reference to the advisability of purchasing 170 Lafayette Avenue, Passaic. At Pope's request, Brussel examined the property, was favorably impressed and subsequently, as agent of Pope, signed a contract for its purchase. The price was $11,500, of which $2,500 was paid on the day the contract was signed. The balance of $9,000 was paid the day the deed was delivered. Pope had appeared at the office of Mr. Milton Werksman, an attorney, and instructed him to make the purchase in the name of Betty Bain. Pope gave to the attorney a check for $12,000, drawn on a Philadelphia bank, signed and endorsed by Betty Bain. Mr. Werksman deposited the check in his account and used his own checks to satisfy the payments required by the contract. The $12,000 had been deposited in the Philadelphia bank by Joseph Pope. He sent the $12,000 check for signature and endorsement to Mrs. Pope, who was living in Chicago.

Mr. Werksman testified that he acted on behalf of Mrs. Bain in the purchases of all the properties with which this litigation is concerned. However, he admitted that Mrs. Bain

never appeared. He was retained by Pope and all of his instructions came from Pope. Werksman's only contacts with Mrs. Bain were the letters he sent to her recounting his activities in connection with the various purchases.

In an action in the County Court involving the estate of Joseph Pope, Mrs. Bain testified that Pope had given her the $12,000 to use in the purchase of a house for their father and mother. At the hearing in this court the story was changed. Mrs. Bain testified that $9,000 of the $12,000 was supplied by her mother from a fund saved over the years from the family earnings and only $3,000 was donated by Joseph Pope. In this she was corroborated by her mother, Antoinette Popek, and her sister, Stella Popek. The fund from which the $9,000 was taken, according to them, was an accumulation of the savings of 20 years. It was kept in the inevitable tin box in a bureau.

Mr. Popek was a laborer in a bakery. Stella worked in a handkerchief factory and Betty, before her marriage, was a show girl. For upwards of 20 years they had lived in Garfield in what is known as a "cold water flat." It did not have heat, hot water or bathroom. There were two bedrooms. For these accommodations the Popeks paid rent of $22 per month. They testified that they decided that the Garfield flat was too crowded. Accordingly, after consultation with Joseph Pope, they purchased the house at 170 Lafayette Avenue, which was in the best residential section of Passaic. The house is large. It has five bedrooms and appropriate baths on the second floor. On the first floor there are two servant's bedrooms in addition to the usual living rooms. The taxes on this property are between $500 and $700 a year. It is plain that the house is too big for the needs of the Popeks. Four of the bedrooms are without furniture and have been closed. The dining room and another room on the first floor have been kept closed and unused.

I cannot believe the defendants' story. Assuming that they were thrifty enough to have saved $9,000 over the course of the years, it is inconceivable that they would use it all to acquire a ...


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