The plaintiff, by his amended bill of complaint, alleges that a certain deed from Mary J. Watson, dated May 22, 1941, conveying premises in Cumberland County, New Jersey, was altered after execution and delivery by the erasure of his name and the name of Verna G. Stretch, his wife, to whom the property was conveyed as tenants by the entirety, and the substitution of the name of Adah B. Sox. The plaintiff further alleges that the said Adah B. Sox thereafter conveyed the premises to the defendant Wallace A. Halter by deed dated February 13, 1943. It was admitted that Adah B. Sox was a "straw" for Verna G. Stretch and that the said Verna G. Stretch received all of the proceeds of the sale to Wallace A. Halter. Plaintiff seeks to have the conveyances of May 22, 1941, and February 13, 1943, declared void; to establish an interest in said premises as a tenant in common, he and Verna G. Stretch being now divorced, and to that end to obtain a conveyance from Wallace A. Halter and Ida Halter; and to obtain an accounting for the rents, issues and profits of said premises from Adah B. Sox, Wallace A. Halter and Ida Halter.
This matter originally came on to be tried before Vice-Chancellor Berry, who decided the primary issue, i.e. , that the conveyance from Mary J. Watson had been altered by Verna G Stretch prior to recording, without any authority or knowledge of the plaintiff at that time (as alleged in the complaint).
The alteration of a written instrument, by a change in the name or description of a party, which changes the legal identity or character of such party, or the identity of the instrument, is ordinarily regarded as material in character. Such a change by one of two grantees named in a deed, unauthorized by the second grantee, serves to avoid it. 2 Amer. Jur. 598, 641; Hunt v. Gray , 35 N.J.L. 227; Jones v. Crowley , 57 N.J.L. 222, 30 A. 871; Schmidt v. Quinzel , 55 N.J. Eq. 792, 38 A. 665. The alteration herein avoided the deed.
Subsequent to the hearing before Vice-Chancellor Berry the plaintiff filed an amended complaint and the several defendants
filed answers, counterclaims and third party complaints. In so far as the present litigation is concerned, the third party complaint against William Gallner may be ignored, counsel having so stipulated. The defendants Halter have filed a counterclaim against Adah B. Sox and Verna G. Stretch, seeking the recovery of pecuniary losses which will be suffered by them in the event the plaintiff succeeds in his main case.
In view of the learned Vice-Chancellor's findings, it is now necessary to consider only the defenses of the defendants Wallace A. Halter and Ida Halter, who contend that the plaintiff is not entitled to the relief sought, on the following grounds: (1) that although the plaintiff and Verna G. Stretch, under the opinion of the learned Vice-Chancellor, were found to have had the legal title, they held the same in trust for their children, and plaintiff cannot now, therefore, maintain this action in his individual capacity; (2) that he is estopped both by his passive actions in being silent when it was his duty to speak, and his affirmative actions; (3) that he is prevented from recovery by reason of waiver; (4) that he is prevented from recovery because of his laches. In the event that the conclusions here reached sustain the plaintiff, it will also become necessary to consider the counterclaims.
In connection with the testimony adduced at the time of trial, I find the following facts: It is apparent that the motivating factor in the background of this litigation is the marital difficulties which existed between the plaintiff and his wife Verna. In order to reach a proper conclusion as to the several defenses it is necessary to consider, among other facts, the marital relationship, the suits concerning the same and the resulting judgments, orders and conduct of the parties.
On January 21, 1931, plaintiff and Verna G. Stretch were married at Lodgepole, Nebraska. Thereafter and prior to the year 1941 the plaintiff commenced his first action for divorce in the State of Nebraska. This action was subsequently discontinued. On January 13, 1941, the plaintiff [6 NJSuper Page 462] filed his second action for divorce in the State of Nebraska and at that time entered into a property settlement stipulation as required under the laws of the State of Nebraska. As a result of this stipulation, Mrs. Stretch quitclaimed her interest in the property at Lodgepole, Nebraska, to the plaintiff, and her interest in the funds arising from the sale of a ranch, which sale was in the amount of $10,000. Plaintiff paid to Mrs. Stretch the sum of $500 and transferred to her one Studebaker automobile. The plaintiff, in addition, deposited $3,000 with the Clerk of the court, to be paid to Mrs. Stretch as trustee, in installments, for the support and maintenance of the two children born of the marriage. On April 14, 1941, in accordance with the laws of the State of Nebraska, plaintiff and Verna G. Stretch petitioned the court of Nebraska for a vacation of the decree of divorce, and to have "the trust funds now in the hands of the clerk released to both parties jointly." On May 10, 1941, a decree was entered in the Nebraska court vacating the divorce decree. On May 15, 1941, the $3,000 check received from the Nebraska court, which had been deposited as above set forth, was cashed by the Stretches and used to purchase the farm at Shiloh, New Jersey, which is the subject of this suit. From March, 1941, to on or about January 15, 1942, both plaintiff and Mrs. Stretch were residents of the State of New Jersey, living the greater part of the time on the Shiloh farm. On January 15, 1942, the plaintiff returned to Nebraska. Verna G. Stretch was left without funds to support and maintain the two children on the farm here involved. She was obliged to seek employment at Bridgeton, New Jersey, which is located some five miles from Shiloh. This necessitated her absence from the children during the day, a condition which greatly worried her. In addition, the living conditions at the farm were such as made it not for the best interests of the children to be left there. It occurred to her that since the purpose of the purchase of the Shiloh property was to furnish an adequate home for the children, if it could be sold and the proceeds invested in a Bridgeton home, the desired result would be accomplished.
On January 14, 1943, the erasures complained of in the deed from Mary J. Watson were made by Verna G. Stretch. The Shiloh property was then sold to Wallace A. Halter and with the proceeds a residence was purchased in Bridgeton, New Jersey, from Katherine Crook. Title to this property was taken as follows: "Verna Stretch, Trustee for Mary Ellen Stretch and Thomas M. Stretch, Jr."
On August 30, 1943, plaintiff filed a third petition in the State of Nebraska, seeking a divorce from Verna G. Stretch. More particular reference to this petition is hereinafter made. On October 12, 1943, the divorce was granted to the plaintiff from Verna G. Stretch in the State of Nebraska. Under this decree, no provision was made for the support of either Verna G. Stretch or their two children, but custody of the children was granted to the said Verna G. Stretch. The ground for divorce was desertion in each of the petitions filed by the plaintiff. On May 8, 1946, the original bill of complaint herein was filed.
Under defendants' first contention, it is argued that the conveyance from Mary J. Watson was, in legal contemplation, a trust for the children of the marriage and that the plaintiff had no such status as would warrant maintaining this action.
Compiled Statutes of the State of Nebraska , 42-313, et seq. , concerning divorce, alimony, maintenance and support, provide in part as follows:
"42-318. Upon every divorce from the bonds of matrimony for any cause excepting that of adultery committed by the wife, and also upon every divorce from bed and board, from any cause, if the estate and effects restored or awarded to the wife shall be insufficient for the suitable support and maintenance of herself and such children of the marriage as shall be committed to her care and custody, the court may further decree to her such part of the personal estate of the husband and such alimony out of his estate as it shall deem just and reasonable, having regard to the ability of the husband, the character and situation of the parties, and all other circumstances of the case."
"42-319. All judgments and orders for payment of alimony or of maintenance in actions of divorce or maintenance shall be liens upon property in like manner as in other actions, and may in the same manner be enforced and collected by executions and proceedings in aid thereof, or other action or process as other judgments."
"42-323. In all cases where alimony or other allowance shall be decreed for the wife or for the children; the court may require sufficient security to be given by the husband for the payment thereof, according to the terms of the decree."
In compliance with the provisions of the statute, Thomas Stretch and Verna G. Stretch entered into a property settlement, filed February 22, 1941, in the District Court of Cheyenne ...