Jayne, Proctor and Schettino. The opinion of the court was delivered by Proctor, J.s.c. (temporarily assigned).
Plaintiff appeals from a judgment entered in the Chancery Division in favor of the defendants in an action to set aside an alleged fraudulent conveyance.
On December 18, 1947, William J. Coles was injured in a collision with a motor vehicle operated by the defendant Oscar W. Osback (hereinafter referred to as Oscar). Coles instituted a tort action but died before it was completed, and his wife was substituted as administratrix ad prosequendum. On January 12, 1948 the summons and complaint in the above action were served on Oscar. He and his wife Minnie L. Osback (hereinafter referred to as Minnie) held title to a house and lot at No. 441 Post Avenue, Lyndhurst, which had been conveyed to them by their son Theodore by a bargain and sale deed, dated April 16, 1945. By warranty deed, dated February 16, 1948, Oscar and Minnie conveyed the aforesaid property to their other son, Edwin Eric Osback (hereinafter referred to as Edwin). On December 28, 1949, judgment in the sum of $10,675 was recovered against Oscar.
The judgment in the tort action being unpaid, the plaintiff filed a complaint against Oscar, Minnie and Edwin, seeking to have the last mentioned conveyance set aside as fraudulent and the judgment in the tort action declared a lien upon the premises. Minnie died prior to the trial.
Defendants in their answer admitted the transfer but denied it was fraudulent. They further contended that the property had been purchased in 1940 by Theodore, whose conveyance to Oscar and Minnie in 1945 was to constitute them as trustees for Theodore; that in 1948 Theodore sold the premises to his brother Edwin, and that the conveyance from Oscar and Minnie to Edwin was pursuant to instructions from Theodore to carry such sale into effect.
The trial resulted in a judgment in favor of the defendants, Coles v. Osback , 13 N.J. Super. 367 (Ch. Div. 1951), from which plaintiff now appeals.
The question for our determination is: Who was the real owner of the property at the time of the accrual of the tort action? This requires an examination of the facts and circumstances in relation to the successive conveyances of the property.
In the summer of 1940 the defendant Oscar and his wife Minnie conducted negotiations for the purchase of a home (the premises in question) from the Lyndhurst Building and Loan Association. The negotiations resulted in a sale of the property for $3,000, $300 to be paid in cash and the balance of $2,700 to be covered by a purchase money mortgage. The grantee in the deed was Theodore Osback, a son of Minnie and Oscar. At that time, Theodore was not quite 20 years of age, single and living with his parents. He took no part in the negotiations for the purchase of the property, other than allegedly making the down payment of $300 and signing the bond and mortgage, which likewise were executed by Oscar and Minnie. In relation to the sale Theodore testified:
"At the time I bought the property, I was twenty. My father was about fifty-five. As I understood between my mother and father and myself that his age was against him for getting a loan from the bank, or whatever the reason was, the bank wouldn't make the loan to him, but they would make the loan to me, and I paid the $300 which was the initial payment."
It also appears that at that time there was an unsatisfied judgment against Oscar, docketed in the former Supreme Court.
After the purchase Oscar and his family, including Theodore, moved into the premises. Theodore testified that Oscar made all the payments on the mortgage and also paid the taxes, water rents and insurance premiums. Theodore's interest in the property may be gathered from the following excerpts taken from his testimony:
"He (Oscar) made the payments, and from 1940 on, if he wasn't to finish the payments, I would continue, and ...