On appeal from Superior Court, Chancery Division.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Burling, J.
This is a civil action. The defendant-respondent herein, Nancy B. White, instituted an action for separate maintenance and custody of children against her husband, Edward White, IV (hereinafter referred to as Edward White) (who was not within the jurisdiction, was not served personally and did not enter an appearance) by attachment. Wrifford White, Edward White's brother, claiming ownership of certain real estate which (with the rentals therefrom) was subjected to the attachment on Edward White's property interests in New Jersey, instituted the proceeding from which this appeal stems by a complaint filed to settle his claim to that property. See R.R. 4:77-3, formerly Rule 3:72-3 as amended January 1, 1952. The Superior Court, Chancery Division, entered judgment for the plaintiff in attachment, Nancy B. White, defendant-respondent herein. The claimant, Wrifford White, appealed to the Superior Court, Appellate Division. Prior to hearing there we certified the appeal on our own motion.
The real estate involved is a three-family dwelling and premises known as 209 Holly Street in Cranford, New Jersey. The property was purchased by Edward White, the defendant in the separate maintenance action, in September, 1938, and was conveyed by him (through a straw party) to himself and his wife, Nancy B. White, in February, 1946. In February 1951 Edward White and Nancy B. White conveyed the premises to Edward White's mother, Edna W. White. The deed of conveyance was recorded in June, 1951. There is evidence that Edward White's money was used for this purchase and for the purchase of the home of Edward White and Nancy B. White on Hampton Road in Cranford which was purchased in Edward White's mother's name and
conveyed to him and Nancy B. White ostensibly in exchange for the Holly Street property. Nancy B. White testified that she and Edward White continued to pay the expenses of the Holly Street property after these transfers. They received the rents therefrom and reported the income on their income tax return. No rent money was paid to Edward White's mother. Nancy B. White further testified that her husband had advised her that the transfers were a legal method of avoidance of capital gains taxes on the Holly Street property in the event they decided to sell the same. She also testified to the existence of an unrecorded deed retransferring title to the Holly Street property from Edna W. White, her husband's mother, to Edward White and Nancy B. White. Edna W. White corroborated Nancy White's testimony that Edward White's plan was to avoid capital gains tax. However, she testified on depositions that she, Edna W. White, had expended $3,500 of her own funds for the Hampton Road property (which was worth $21,000 and was encumbered by a $15,000 mortgage) and after the exchange owned the Holly Street property (which was worth about $21,000 and was encumbered by a $6,000 mortgage). Her testimony on depositions is evasive as to the receipt of income from the Holly Street property. She testified that she discussed with Edward White the transfer of the Holly Street property to Wrifford White, but was evasive as to the details and that Edward White collected and kept the rentals thereafter. She evaded questions designed to elicit whether she had reconveyed the Holly Street property to Nancy B. White and Edward White.
Edna W. White conveyed the Holly Street property, without consideration, to Wrifford White, a resident of Pennsylvania, on January 9, 1953, and the deed was recorded.
The evidence of Edward White's desertion of his wife and children is uncontradicted. No question as to the sufficiency of evidence of desertion or of the need for support is asserted on this appeal.
The questions involved on this appeal by Wrifford White, the claimant to the Holly Street property, are (a) whether
realty, legal title to which is in a nonresident, may be attached by a resident wife who asserts that her absconding husband has an equitable interest therein, and (b) whether the wife's testimony was erroneously received in evidence to establish that equitable interest against the legal title owner's claim of property.
The claimant contends that Nancy B. White as the plaintiff in the separate maintenance action had no right to resort to attachment. The pertinent statutory provision is N.J.S. 2 A:34-26, which reads as follows:
"When a husband cannot be found within this state to be served with process, his estate, property and effects within this state and the rents and profits thereof may be attached to compel his appearance and performance ...