On certified appeal from the Appellate Division of the Superior Court.
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling and Jacobs. For reversal -- None. The opinion of the court was delivered by Heher, J.
By this proceeding in equity plaintiff seeks an assignment of dower in lands situate in Newark, New Jersey, known as 138-146 Norfolk Street and 9 Tuxedo Parkway, dowable it is affirmed as property of which her deceased husband, Robert, had the beneficial seisin in his lifetime.
As to the Norfolk Street tract, the gravamen of the action is a premarital conveyance to the defendant corporation designed to defeat plaintiff's expectation of dower by the fulfillment of their engagement to marry, and thus in fraud of an essential property right. And it is alleged that at the time of his death the deceased had the equitable ownership of the Tuxedo Parkway property within the intendment of R.S. 3:37-1, now N.J.S. 3 A:35-1.
In the Chancery Division of the Superior Court, the complaint was sustained as to the Tuxedo Parkway premises, but otherwise dismissed for failure of proof of fraud. The dower interest in that property was assessed at $4,094.96. On cross-appeals, the Appellate Division affirmed the dismissal in respect of the Norfolk Street lands as a claim barred by laches, but directed a dismissal also as to the Tuxedo Parkway property as involving an interest relinquished by a release in due form of law. 31 N.J. Super. 80 (1954).
The case is here by certification at the instance of plaintiff.
The contention here is that a voluntary conveyance of real property by one "who contemplates marriage, made without the knowledge or consent of his intended wife," is prima facie a "fraud against her dower right" in the lands, and the burden is cast on the grantee to "establish the validity of the deed." These cases are cited, among others from outside jurisdictions: Smith v. Smith, 6 N.J. Eq. 515 (Ch. 1847); Wildeman v. Wildeman, 98 N.J. Eq. 109 (Ch. 1925). Compare Chandler v. Hollingsworth, 3 Del. Ch. 99 (Ch. 1867), distinguishing between actual fraud, such as a representation of ownership made to the intended spouse followed by a secret conveyance, and "constructive" fraud, involving mere nondisclosure of ownership.
The insistence is that in the case at hand there was neither a legal nor an equitable duty owing to the grantee serving to rebut the presumption of fraud upon the betrothed's marital rights; and so the intent to defraud is deducible from the conveyance itself. E.g. Williams v. Carle, 10 N.J. Eq. 543 (E. & A. 1856); Champlin v. Champlin, 16 R.I. 314, 15 A. 85 (Sup. Ct. 1888); Ward v. Ward, 63 Ohio St. 125, 57 N.E. 1095, 51 L.R.A. 858 (Sup. Ct. 1900); Dunbar v. Dunbar, 254 Ill. 281, 98 N.E. 563 (Sup. Ct. 1912).
The Chancery Division resolved the issue of fraud against plaintiff. It was there found that "the reason for the transfer was to give" the grantor Hampton's "sons the property which was created by virtue of the efforts of the three," and there was no ground for holding that "it was done in fraud"; the corporation "was not formed for the purpose of defrauding plaintiff of dower" in the premises, nor was the conveyance to the corporation made "for the purpose of depriving" her of dower; and the judgment is defended as well founded in fact and in law. Recourse is had to the general rule that an antenuptial conveyance "made in good faith" will defeat dower. Frank v. Frank's Inc., 9 N.J. 218 (1952), is deemed apposite. And it is urged that, at all events, relief is barred by laches, the ground taken by the Appellate Division.
The essence of the plea of laches is that plaintiff is chargeable with undue delay in undertaking enforcement of her claim for dower, prejudicial to defendants on the merits; and we shall now consider the reasoning in the context of the factual background offered in support of the plea of inexcusable delay.
The marriage was celebrated June 15, 1939, following an engagement made the prior April 13. Hampton was then 66 or 67 years of age, and his wife, 37. On the intervening April 26 Hampton and his two sons, Robert F. and Charles J., formed the defendant corporation, each taking 20 shares of the capital stock, and on June 7 following the conveyance of the Norfolk Street premises was made to the corporation. It is said that Hampton thereby designed to "reward" his sons, helpers in his long-established roofing business, "for their efforts" in establishing a "successful ...