Conford, Kilkenny and Leonard. The opinion of the court was delivered by Conford, S.j.a.d.
We have here for review an appeal and cross-appeal by a wife and husband, respectively (who were living separately under a consent judgment of separate maintenance entered October 26, 1960), from an order dated June 13, 1967 which determined various motions and petitions filed by the parties against each other during the years 1965 and 1966. The disputes relate mainly to matters of money, property and accounting.
We observe at the outset that the appendices furnished the court in this matter are most unsatisfactory, consisting of a mass of uncoordinated bits and pieces of the proofs, colloquy and exhibits from the record before the trial court, of a nature such as to render a fair understanding by the court of the factual background of the controversies between the
parties almost impossible. Further adding to our difficulties is the fact that the parties represented themselves pro se in the trial court, and one cannot tell, as to much of the material incorporated in the appendices, whether it constitutes argument, as by counsel, or sworn testimony, as by a party-witness. However, we have attempted to deal with the data presented as best we could in deciding the issues presented.
The prime subject of present contention is whether the plaintiff is the sole equitable owner of the Lake Mohawk property to which the parties hold title jointly as tenants by the entirety under a deed dated December 21, 1953. This property was purchased by the parties for a consideration of $15,000, $5,000 having been paid in cash and $10,000 through a mortgage made by them jointly. The property was originally acquired as a place of recreation for the family, which at the time included two children; later it was leased to various tenants.
It is plaintiff's contention that she advanced the $5,000 down-payment out of her personal funds and that it was her understanding at the time, as gained from defendant, who is admitted to the New York bar (but does not practice law), that legal technicalities required the title to be taken in both names, and that he arranged the transaction in that manner although he knew she expected the property to be hers alone. She also asserts breach by defendant of a fiduciary relationship to her in the transaction. She consequently contends for the existence of a resulting or constructive trust in the property for her benefit. The trial court held plaintiff failed to establish that the $5,000 came from her own funds and that, in any case, the contention of trust was not substantiated as a matter of law.
We eschew a review of the contested question of fact as to the source of the money on the blurred and incomplete record before us as it is our conclusion that the determination of the trial court on this point must be affirmed even if the purchase funds emanated from plaintiff. Preliminarily,
any special equity to the property in the plaintiff could not exceed the $5,000 contribution asserted since both parties joined in the bond and mortgage by which the remainder of the purchase price was realized. Further, the factual assertion in plaintiff's brief that plaintiff and defendant both intended at the time of purchase that she was to be the sole beneficial owner of the property is not supported by one iota of proof in plaintiff's appendix supplied on this appeal. Plaintiff's factual assertions in this regard in her brief were totally unsupported by reference to the record. See R.R. 1:7-1(d).
Assuming, arguendo, that plaintiff did contribute the $5,000 down-payment from her separate funds, the controlling presumption by the weight of the best reasoned authority, there being no proof in the record of a contrary intention on the part of the parties, is that the husband takes exactly that interest in the property which the deed on its face purports to give him -- in this case a joint estate by the entirety with his wife. Annotation 43 A.L.R. 2 d 917, 918-19 (1955), and numerous cases cited therein; and see Restatement of Trusts 2 d, § 441, comment (e) (1959). Plaintiff admits she knew that title was taken in both names.
A distinction must be drawn between the type of situation presented here, i.e., investiture of title in the names of both spouses, and that where title to the property acquired with the wife's funds is placed in the name of the husband alone. In the latter instance the predominant view holds that the applicable presumption (rebuttable) is of a resulting trust in favor of the wife. 4 Powell on Real Property, § 592, p. 564.111 (1968); 5 Thompson, Real Property, (1959), § 2343, p. 106; Restatement of Trusts 2 d (1957) § 442, comment (a), p. 403; 5 Scott on Trusts, § 442, p. 3337 (1967).
As to the case where the title to the property is knowingly taken in both names, as pointed out in the well-considered ...