On appeal from the Appellate Division of the Superior Court, whose opinion is reported in 8 N.J. Super. 263.
For reversal -- Chief Justice Vanderbilt, and Justices Case, Heher, Oliphant, Wachenfeld, Burling and Ackerson. For affirmance -- None. The opinion of the court was delivered by Oliphant, J.
Certification was granted in this cause, 5 N.J. 383, on the petition of the plaintiff, Helen Pope, individually and as administratrix of the estate of Joseph Pope, deceased, to review a judgment of the Superior Court, Appellate Division, 8 N.J. Super. 263, which reversed a judgment entered in the Chancery Division of the Superior Court, 5 N.J. Super. 541, impressing certain liens on property held in the name of the defendant, Betty Bain.
The factual situation discloses that Joseph Pope died intestate on June 27, 1947, leaving his widow, the appellant here, and three minor children surviving him. On August 11, 1944, Joseph Pope purchased premises known as 170 Lafayette Avenue, in the City of Passaic, and on March 4, 1946, he purchased the adjacent property, 172 Lafayette Avenue. Title thereto was taken at his direction in the name of his
sister, the defendant Betty Bain. On June 28, 1945, Pope purchased a vacant lot on Paulison Avenue, in the City of Passaic, title to which was also taken in the name of Betty Bain. On July 19, 1946, Betty Bain at the direction of Joseph Pope conveyed a portion of the Paulison Avenue lot to the defendant, Saul Cohen, as security for a loan of $5,000 made by Cohen to Pope.
At the time and during the period covered by these transactions there was outstanding against Pope a judgment of $30,000 entered in a negligence suit against him. All this real estate was purchased by Pope and title thereto taken in the name of Betty Bain to avoid this existing judgment of record in the sum of $30,000. The judgment was wiped out by his discharge from bankruptcy on March 25, 1946, which was subsequent to all these transactions with the exception of the conveyance from Pope to Cohen of a portion of the Paulison Avenue lot which was made as stated on July 19, 1946.
The proofs clearly indicate that as to all the transactions the money was advanced by Pope and title taken in Betty Bain's name either because of the outstanding judgment or the possibility of other judgments being secured against him. It is not seriously disputed that all the moneys involved were advanced and belonged to Pope.
This suit was originally instituted by Pope's widow and children in an endeavor to impress a trust on the real estate held by the defendant, Betty Bain, on the theory that the properties were purchased by Pope with his money and title thereto taken in the name of Betty Bain; that she held the properties in trust for the plaintiffs, the wife and heirs-at-law of Pope. Subsequently Mrs. Pope, as administratrix of her husband's estate, and certain creditors were granted leave to intervene as parties plaintiff. Four of the intervening creditors allegedly had performed work and supplied materials in and upon the buildings on the properties and the other three had loaned money to the decedent Pope.
The Chancery Division judge determined that the defendants, Betty Bain and Cohen, held the record title to the properties in trust for the plaintiffs since they had been purchased
by Pope with his own funds and for his benefit, and that even though Pope had taken title in his sister's name to defeat the rights of a judgment creditor, his wife, his heirs-at-law and subsequent creditors were entitled to a lien against the properties. The court further held that the defendant, Betty Bain, was entitled to a lien for moneys advanced by her for taxes, amortization, interest payments on the mortgage, insurance and repairs.
The judgment entered on the determination ordered that all four parcels be sold and from the proceeds the widow's dower be fixed and paid and the remainder paid over to the widow as administratrix of the estate of Joseph Pope, deceased, and by her, subject to administration, payment should be made to the creditors and the balance to be distributed among the heirs-at-law. The judgment made a provision for the payment of the defendant's lien as against the property known as 172 Lafayette Avenue and the lien was fixed at the sum of $1,735.56. No provision was made for this particular lien to be impressed on either the 170 Lafayette Avenue or the Paulison Avenue properties. It ...