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Venetsky v. West Essex Building Supply Co.

Decided: November 5, 1953.

RUBEN VENETSKY AND MIRIAM VENETSKY, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
WEST ESSEX BUILDING SUPPLY CO., INC., A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT



Clapp, Goldmann and Ewart. The opinion of the court was delivered by Ewart, J.A.D.

Ewart

A chronology of the events leading up to the controversy presented by this appeal is as follows:

January 22, 1953 -- Eliza Gottsleben died a widow and intestate, resident at and seized of title to premises known as 81-83 West Kinney Street, Newark, N.J. She left her surviving as her only heirs-at-law and next-of-kin three children, viz. , Clarence Fred Gottsleben, a son; Joseph William Gottsleben, a son; and Elsie May Day, a daughter, all of whom were of full age. No administration has ever been taken out on her estate.

January 26, 1953 -- By deed of this date, "Clarence F. Gottsleben and Mildred Grace Gottsleben, his wife" conveyed all of their right, title and interest in and to the premises in question to Joseph W. Gottsleben. The deed was recorded January 30, 1953 in Book 3106 of Deeds for Essex County, page 158. The deed recited that he was one of the heirs-at-law of Eliza Gottsleben who died January 22, 1953.

February 9, 1953 -- By deed of this date, recorded March 5, 1953 in Book 3113 of Deeds for Essex County at page 480, Elsie May Day and Osborne Harold Day, her husband, conveyed all of their right, title and interest in and to the premises in question to Joseph W. Gottsleben.

February 16, 1953 -- An agreement in writing was entered into on this date between Joseph William Gottsleben, single man, as seller, and plaintiff Ruben Venetsky as buyer, by the terms whereof the seller agreed to sell and convey to the buyer by deed of bargain and sale, but free from all encumbrances, on or before March 15, 1953, title to the premises in question for a price of $5,000. The contract of sale contained the following recitals:

"Being the same premises conveyed to Eliza Gottsleben by deed dated October 26th, 1948 and recorded in Book S 112; Pages 147-148.

The said Eliza Gottsleben died a widow and intestate on January 22nd, 1953 leaving her surviving three children, Elsie May Day, Clarence F. Gottsleben and Joseph William Gottsleben. The said Elsie May Day and Clarence F. Gottsleben have conveyed their interest in the above described property to Joseph William Gottsleben."

And the contract of sale contained an express representation that all debts of the estate of Eliza Gottsleben had been paid; that the seller would execute an affidavit of title in the customary form; and a covenant that in the event it should afterwards appear that there were debts against the estate of Eliza Gottsleben, the seller would be personally liable for the payment thereof.

March 9, 1953 -- By bargain and sale deed bearing this date, Joseph William Gottsleben, unmarried, conveyed to the plaintiff Ruben Venetsky, title to the premises in question, which deed was duly recorded on the same day in Book 3114 of Deeds for Essex County, page 300. The deed contained the following recital:

"Being the same premises conveyed to Eliza Gottsleben by deed dated October 26th, 1948 and recorded in Book S 112; pages 147-148.

The said Eliza Gottsleben died a widow and intestate on January 22nd, 1953, leaving her surviving three children, Elsie May Day, Clarence F. Gottsleben and Joseph William Gottsleben. The said Elsie May Day and Clarence F. Gottsleben have conveyed their interest in the above described property to Joseph William Gottsleben."

On the same date as the deed last mentioned, and simultaneous with the execution thereof, Joseph William Gottsleben executed a long conventional form of affidavit of title in which is traced step by step the devolution of title to the premises in question, commencing with the deed from Munn to Ashfield in 1919 and continuing the same down into Eliza Gottsleben; stating the date of death of Eliza Gottsleben and the fact that she died a widow and intestate, leaving her surviving as her only heirs-at-law her three children as aforesaid, including "Clarence F. Gottsleben"; stating the conveyance by Clarence F. Gottsleben et ux. , to deponent Joseph William Gottsleben, and the conveyance by Elsie May Day et vir. , to Joseph William Gottsleben, giving the dates of the deeds and the books and pages where recorded as above set forth; stating that title to the said premises was free and clear of all encumbrances, including judgments; that all debts of Eliza Gottsleben had been paid in full and that there were no federal estate taxes or transfer inheritance taxes due upon her estate; stating and agreeing that deponent would obtain a New Jersey inheritance tax waiver as promptly as possible and attend to recording the same in the Essex County Clerk's office at his own expense; agreeing that in the event any estate or inheritance taxes should thereafter be levied or become due, or should debts upon the estate of Eliza Gottsleben be thereafter made to appear, that is, debts that would be a lien on the premises in ...


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