Goldmann, Freund and Kilkenny. The opinion of the court was delivered by Freund, J.A.D.
This is a suit to declare and enforce the plaintiff's rights in certain real estate pursuant to an alleged oral conveyance. Plaintiff appeals from an adverse judgment rendered by the Chancery Division.
Jane Aiello originally instituted this action against her husband, John Aiello, her father-in-law, Joseph Aiello, and the Knoll Golf Club. She subsequently amended her complaint to join her mother-in-law, Julia Aiello, as a party defendant. Upon the understanding that legal title to the land in question was vested in Joseph Aiello, plaintiff dropped Knoll Golf Club as a party defendant. With due respect for the parties, but in the interest of brevity, we will hereinafter refer to them by their first names.
Jane and John were married in 1950, and in 1952 jointly acquired real estate in Mountain Lakes, N.J. Either at the urgings of the parents, Julia and Joseph, or on their own initiative, the young Aiellos in the spring of 1955 expressed an interest in selling their property and building a new home on a parcel of the Knoll Golf Club. The club, located in Boonton, was owned by Joseph and managed by John.
With Joseph's acquiescence, Jane and John selected an area on the club property, and they were permitted to erect their new home on the site selected. They then sold their Mountain Lakes home, realizing after the deduction of the commission and attorney's fees a net balance of over $14,000, which funds Jane permitted John to retain in his custody.
In the summer of 1955 construction of the house was commenced. The original contemplated cost of the dwelling was $15,000 to $20,000. However, it soon became clear that much larger sums were necessary to complete the construction. The trial court found that John's expenditures for the house -- representing both his own money and the joint funds of Jane and himself -- totaled $7,698.87. His father was called upon to pay and did pay the remainder of the construction costs in the sum of $45,663.19.
Evidence of a leasehold arrangement regarding the disputed property was received on behalf of defendants, in the form of a written document, dated June 1, 1955, signed by John and Joseph. However, the trial judge found that the actual date of execution of the lease was in doubt and consequently did not rely upon the instrument in arriving at his conclusions. Plaintiff claims that not only was she never made aware of the alleged lease, but that she first realized that legal title by deed had never passed from Joseph to John at the time that John endeavored, unsuccessfully, to obtain a mortgage for the property.
In August 1957 Jane and John separated. Prior to the commencement of the instant suit, Jane instituted an action for maintenance.
In her complaint, plaintiff sought a declaratory judgment of her interest in the Knoll property and asked that a constructive trust be impressed in her favor upon the lands and improvements. She also demanded an accounting from her husband, John Aiello, of the proceeds from the sale of their Mountain Lakes property in order to determine how much of those proceeds were expended in connection
with the residence on the Golf Club grounds. Since plaintiff was faced with the obstacle of the Statute of Frauds, R.S. 25:1-5, requiring that an agreement to transfer an interest in real estate be in writing and signed by the party to be charged therewith, Grabow v. Gelber , 138 N.J. Eq. 586, 587 (Ch. 1946), she relied on the equitable doctrine of parol gift -- that a transfer of possession of the land and the expenditure of money on improvements of a permanent nature induced by an oral promise of gift will be enforced. By her proofs, she sought to establish that she had invested a total of $17,000 in the new home, and that Joseph Aiello had repeatedly stated, in the presence of herself, John and others, that he was making or had made a "gift" of the property to his son and daughter-in-law.
The trial judge, however, found that Joseph had merely "acquiesced" in the erection of the dwelling upon his lands, mainly for the benefit and convenience of John in the latter's employment as club manager; that "this is not a case where a plaintiff is asked to pull up stakes and to come upon the defendant's property upon oral promises of a gift and who does come on at the urging of the defendant, [and] makes permanent improvements * * *"; that plaintiff put no money directly into the erection of the house with the exception of $109; and that John Aiello expended the sum of $7,698.87 toward improvements on the land and premises. Judgment was therefore entered in favor of defendants, conditioned on the deposit of $7,807.87 ($7,698.87 plus $109) with the court by Joseph Aiello, pending determination of the respective interests of John and Jane to that amount.
Plaintiff's appeal is founded on two contentions: first, that the trial judge erred in requiring plaintiff to establish her claim by "clear and unequivocal proof"; and secondly, that the determination that plaintiff ...