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Orland Properties Inc. v. Broderick

Decided: March 20, 1967.

ORLAND PROPERTIES, INC., A CORPORATION, PLAINTIFF,
v.
MAURICE A. BRODERICK AND NATALIE BRODERICK, HIS WIFE, ELSIE G. BUTT AND EUGENE W. BUTT, HER HUSBAND, JOSEPH N. LA PIETRA AND ELIZABETH LA PIETRA, DEFENDANTS



Matthews, J.s.c.

Matthews

[94 NJSuper Page 309] This action was instituted by Orland Properties, Inc., a New Jersey corporation, seeking partition

of certain realty commonly known as Lot 6 in Block 59, Borough of Fort Lee, Bergen County. Defendants La Pietra have counterclaimed to quiet title. The principal facts involved are not disputed. Plaintiff has moved for a judgment on the pleadings, and in disposing of the motion I am considering such additional facts as have been supplied by defendants as being true. At the outset, I observe, and the parties concede, that defendants Butt are merely nominal parties hereto, having at all times acted as agents for defendants La Pietra. The matter has been dismissed as to them.

Defendants La Pietra purchased the lot in question during the year 1952 from Mary T. Bradley, administratrix of the estate of John E. Fitzpatrick. The deed was filed in Bergen County on June 9, 1952. The purchase price paid was the sum of $500, together with a $29.22 tax adjustment. There is nothing in the record to indicate that the consideration paid was inadequate or unfair. The property in question had originally been owned by John E. Fitzpatrick, who died intestate on June 12, 1950, a resident of Manchester, New Hampshire. At his death Fitzpatrick left three brothers, Charles, Henry, and Michael, and a sister, Margaret H. Glancy, who survived him. Another sister, Alice Broderick, predeceased decedent, having died in 1947, leaving four children surviving her: Maurice A. Broderick, Lucy Brady, Alice Broderick and Marguerite M. Hurley. In 1952 the La Pietras lived in a home that adjoined the property in question. At the death of Fitzpatrick they expressed a desire to acquire the land in question, which was a vacant lot, to increase the size of their residential property. The purchase was consummated as indicated, and the conveyance was made by an administratrix' deed. The purchase price was paid and the administratrix, in turn, accounted for the sum received to the heirs at law of Fitzpatrick, and subsequently paid the same to them in proceedings taken under New Hampshire law. Thereafter, defendants took possession of the property and have continuously remained in possession thereof until this time.

Sometime thereafter the La Pietras were informed that the title which they received from the administratrix may not have been good in that title to the property in question had descended at decedent's death to his heirs at law. They were not successful in having the attorney who represented them at the time of purchase, correct the property defect. They subsequently engaged another attorney who made various efforts to obtain confirmatory deeds from the heirs of Fitzpatrick, but he was unsuccessful in these attempts. Subsequently, under advice of counsel, they attempted to perfect their title by means of a municipal tax lien foreclosure. They permitted the municipal real estate taxes on the lot to remain unpaid, suffered certificates of tax sale to be sold and vested in a niece, and thereafter gave instructions for the institution of a foreclosure action thereon. During the year 1961 such foreclosure proceedings were taken in this court and the usual affidavit of inquiry was filed. It was the filing of this document that brought the representatives of plaintiff on the scene. Plaintiff corporation is an alter ego of one Herbert Harvey, who has been described as a specialist in the acquisition of outstanding interests in tax lien proceedings in this State. Learning of the difficulties which existed with respect to the title in question, Harvey, using the filed affidavit of inquiry as a guide, contacted each of the heirs listed therein and solicited, with the exceptions hereinafter noted, deeds conveying their claimed interests for a nominal consideration. The exceptions included one Mary G. Kelly, the daughter of Margaret Glancy (who died a widow in 1955) and Maurice A. Broderick and his wife Natalie. Mrs. Kelly informed the La Pietras of Harvey's efforts and executed a deed to them. The Brodericks declined to give any deed and have been made parties to this action; they have defaulted both as to the complaint and counterclaim.

The efforts of Harvey's interests to obtain the title during the tax sale certificate foreclosure proceedings consisted of the following device: One Freda Solomon, who was purportedly

an officer and director of plaintiff corporation, held a judgment against Hudson Trading Corporation and Harvey. As holder of the judgment, she claimed to have an interest in Hudson's realty. When Hudson obtained the deeds from the Fitzpatrick heirs, Freda was in a position to compel assignment of the outstanding tax sale certificates on the property. Freda then sued the Brodericks and La Pietras to foreclose the certificates. This effort was defeated when the La Pietras paid the full amounts due on the tax sale certificates with interest and costs. The certificates were discharged and cancelled of record. Thereupon, the Harvey interests filed this action.

Plaintiff's position may be simply stated. It argues that the La Pietras never purchased the premises in question because the attempt by the administratrix to convey was a legal nullity. The only title that the La Pietras can be said to have is that portion thereof (1/20) obtained through the deed given by Mrs. Kelly. Plaintiff characterizes defendants' attempts to quiet title as one asking this court to take the title from a successful competitor, the plaintiff, and to bestow it on defendants. Defendants, of course, rely heavily on the opinion of the Supreme Court in Bron v. Weintraub, 42 N.J. 87 (1964), judgment on mandate affirmed 45 N.J. 1 (1965).

Although decedent died a resident and domiciliary in the State of New Hampshire, the law governing the devolution of his realty located in New Jersey is governed by the law of this State. Pratt v. Douglas, 38 N.J. Eq. 516 (E. & A. 1884). Under our law, at decedent's death the title to his realty passes directly, in the case of intestacy, to his heirs. The administrator acquires no right or power therein. An administrator is given no power of sale over realty except that authorized by statute which arises when the personal estate of decedent is insufficient to meet his debts or obligations. See N.J.S. 3A:24-16 et seq. As has been stated by Judge Clapp in his work on Wills and Administration, ยง 1025:

"It follows that the general administrator of an intestate decedent has no control over the decedent's realty except ...


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