On certified appeal from the Chancery Division to the Appellate Division of the Superior Court.
For reversal -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Jacobs, Francis and Proctor. For affirmance -- None. The opinion of the court was delivered by Heher, J.
[27 NJ Page 146] A final decree of divorce for desertion entered October 29, 1947 in the then Court of Chancery of New Jersey dissolved the marriage between the appellant here, Anna Mae Scott, the petitioner for divorce, and William H. Scott, Sr. The decree nisi, made July 28, 1947, approved as "fair and equitable," and more advantageous to
the petitioner "than would a provision herein by way of alimony," an agreement between the parties providing, inter alia, that the "use and possession" of the lands and dwelling in their "joint" ownership known as 134 Penn Avenue in Collingswood, New Jersey, "shall be the sole right of the petitioner during the term of her natural life, and that upon this decree becoming final, they will join in a deed of conveyance to themselves as joint tenants subject to the petitioner's right to exclusive possession of the premises during her life as aforesaid"; and that "the defendant will pay all taxes on said premises and will maintain fire and supplemental insurance in an amount sufficient to protect the value thereof."
William H. Scott, Sr. died March 16, 1955. The stipulated conveyance of the lands to the divorced couple as joint tenants had not been made, but Anna Mae Scott had remained in possession of the lands in accordance with the agreement approved by the decree nisi; and there is no evidence, either direct or circumstantial, of a consensual modification of the agreement. The failure to make a formal conveyance was undoubtedly due to the inadvertence and oversight of counsel; each relied on the other to draft the instrument until it was lost to memory. And the parties themselves relied on counsel for the doing of whatever was necessary to perfect the arrangement. There is no contention contra, save as a matter of purely speculative inference, of which more hereafter.
Apparently unaware of the existence or the force and effect of the agreement thus made an integral part of the decree nisi, the executors of the deceased William H. Scott, Sr. claimed a half interest in the lands in fee, and the tenant in possession, Anna Mae Scott, although insisting that the full fee simple was hers by right of survivorship, joined with the executors in an agreement to sell and convey the property on the advice of counsel who was not then cognizant of the property settlement thus merged in the decree nisi. The sale was consummated but, the settlement provision having come to counsel's knowledge meanwhile, Anna Mae
Scott made demand for the proceeds of sale in their entirety, and the plaintiff, as the holder of the fund, thereupon brought this action in the nature of an interpleader for the litigation of the title, setting forth the claim of the defendant executors to one-half of the fund in the right of their testator as a tenant in common of the lands, and Anna Mae Scott's demand for the full proceeds of sale by right of survivorship.
The defendant Anna Mae Scott interposed a cross-claim against the executors of her former spouse asserting a joint tenancy and survivorship and demanding judgment for the "entire sum" in plaintiff's possession, less such costs and counsel fees as may be awarded to it by the court.
The Superior Court found that the cited provision of the decree nisi "reflected an apparent agreement orally arrived at and never reduced to writing by and between [the] decedent and his wife, Anna Mae, that upon the decree becoming final they would join in a deed of conveyance to themselves as joint tenants, subject to Anna Mae Scott's right to exclusive possession of the premises during her life," but "such a deed was never drawn, or directed to be drawn." Recourse was had to the principle that equity "aid[s] the vigilant and not those that slumber on their rights," and "has a reluctance to deal with any demand that might be stale"; and these findings were made: "The decree is not self-executing * * *. The decree called for the parties to do something. They did nothing. Certainly Mrs. Anna Mae Scott did nothing to accomplish the provision which called for a deed unto herself and her husband as joint tenants. * * * None of us here know because there is no testimony as to what passed between husband and wife after their divorce, whether he, in some way, satisfied her with money, or in other ways, not to press her right to a joint tenancy deed; or perhaps she was not at all interested"; "There was both knowledge here and delay, under our cases"; there "has been lost, due to the death of the decedent, such testimony as might have thrown a brighter light upon the whole arrangement between the parties, and
in the interval between the pre-final decree and the final decree eight and a half years ago, and the present time," and the court "is without the benefit of the memory of that person whose knowledge of material facts would have helped," citing Lutjen v. Lutjen, 64 N.J. Eq. 773 (E. & A. 1902), and so the "equitable principle of laches applies." And it was held that the doctrine of waiver is also relevant, in that Anna Mae Scott, "possessed of a knowledge of her rights conferred by law, * * * forebore to do something, namely, to get the deed to which the decree refers, and in fact did something else: entered into a formal agreement of sale of her half interest, * * * with apparent knowledge of her right," supported in some measure by "what the executors have done, both in the expenditure of energy and time, and money," in reliance on the record title. And, finally, relief was declared barred by an equitable estoppel grounded in the principle that "a person shall not be allowed to repudiate an act done, or position taken, where that course would work injustice to another who, having the right to do so, has relied upon the act done or position taken," citing New Jersey Suburban Water Co. v. Harrison, 122 N.J.L. 189 (E. & A. 1939), an estoppel that "resides in Mrs. Scott's silence and acquiescence, and thereby permitting the executors to rely upon the record title: that the decedent died with half of 134 Penn Avenue vested in him; [s]he did nothing to dispel this well-grounded opinion and judgment on the part of the executors, but actively joined in the agreement to sell, the sale and division of the proceeds, and the deed."
There was judgment accordingly; the fund was ordered distributed on the basis of a tenancy in common; and we certified, sua sponte, the appeal of the defendant Anna Mae Scott to ...