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Noyes v. Estate of Samuel C. Cohen

Decided: March 30, 1973.

ELLENORE NOYES, PLAINTIFF,
v.
ESTATE OF SAMUEL C. COHEN, DECEASED ET AL., DEFENDANTS



Bischoff, J.s.c.

Bischoff

This matter is before the court on cross-motions for summary judgment. Two defendants, Estate of Samuel C. Cohen and Aneita Cohen having defaulted, they are not involved in these motions.

The facts are as follows:

Plaintiff Noyes recovered a judgment against Samuel C. Cohen, deceased, on February 17, 1972 in the Superior Court of Delaware, Kent County, for $179,300. Plaintiff continues to be the holder of this judgment which has remained unpaid since its date of entry.

Plaintiff began an action by attachment in the Superior Court of New Jersey, Law Division (Docket L-19162-72) against certain real estate owned by Samuel C. Cohen, said real estate being located in the Township of Lower Alloways, Salem County, to obtain recovery on the Delaware judgment. The complaint was filed on March 8, 1972, and pursuant to such action a writ of attachment was issued out of the Superior Court, dated April 3, 1972. The writ of attachment was filed in the office of the Clerk of the Superior Court on April 3, 1972.

On February 14, 1972 Samuel C. Cohen, then still living, and his wife, Aneita Cohen, entered into an agreement of sale for a portion of the real estate subject to the attachment, with defendants Harry E. Beal and Lois F. Beal, and on April 27, 1972 conveyed said lands pursuant to said agreement to them.

On August 4, 1972 a special judgment was entered against the attached realty in favor of plaintiff and against Samuel C. Cohen in the sum of $179,300, with costs, in the Superior Court of New Jersey.

Plaintiff seeks by her motion for summary judgment to set aside the conveyance to the Beals of the realty as being void and of no legal effect.

Plaintiff contends that the conveyance should be set aside on the grounds that N.J.S.A. 2A:26-1 et seq. makes such conveyances void from the time of the issuance of the attachment.

The pertinent portions of said statute are as follows:

2A:26-9. Lien of attachment on real estate of defendant; amendment of return; disposal of real estate; conveyances by defendant void.

The attachment from the time of its issue , shall constitute a lien on the real estate of the defendant in the state where the attachment issued out of the superior court, or in the county where it issued out of a county court, even though the officer fails to especially attach the same or part thereof; and the defendant cannot thereafter assign, transfer or convey the same or any interest therein. The attachment shall also be a lien upon all real estate acquired by defendant in the state or county, as the case may be, after such issue and before final judgment. The court may order the clerk to amend the return to the attachment by annexing thereto a description of such real estate, and may make orders for the disposal thereof. All conveyances by the defendant pending the attachment shall be void against the plaintiff. The said lien shall continue to be a lien until the claim of plaintiff is satisfied, the attachment is discharged or judgment is given against the plaintiff. [Emphasis supplied]

Defendants Beal on the other hand, argue that since plaintiff failed to file a lis pendens there was no way that they, as bona fide purchasers for value without notice, could have obtained notice of the attachment. Their argument is based on two sections of the ...


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