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Carr v. Johnson

Decided: June 23, 1986.

WARREN H. CARR, EXECUTOR OF THE ESTATE OF MARY SMITH, DECEASED, PLAINTIFF-RESPONDENT,
v.
CARRIE JOHNSON, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Gloucester County.

King, O'Brien and Scalera. The opinion of the Court was delivered by Scalera, J.s.c. (temporarily assigned).

Scalera

Defendant, Carrie Johnson, appeals from a judgment rendered against her in a summary landlord and tenant dispossess proceeding conducted in the Special Civil Part of the Superior Court. We reverse because the Special Civil Part lacked jurisdiction to adjudicate the issues raised by the parties in the dispossess action.

The evidence produced before the trial court revealed that the parties' contention concerning ownership of the property in question was in sharp dispute. It indicated that the property (5.1 acres) was owned originally by John R. and Anna H. Sharp. About 35 or 40 years ago, they sold the property to Carrie

Johnson (Carrie) and her husband, Cornelius, and Mary Smith (Mary), plaintiff's decedent, and her husband, John Henry, for $500. According to the conditions of the sale, the purchasers were not required to pay any set amount at regular intervals. Roy Sharp, the seller's son, testified that his father had discussed the sale with him and the Johnsons and the Smiths were supposed to pay the purchase price equally. There were no houses on the land at that time, but they each built their own house on the property about two years after the purchase. Johnson and Smith would make payments every two weeks or every month, whenever they had money. Ninety-nine percent of the time they went to the Sharps together to make their payments. The $500 price was paid within 10 years. The defendant testified that she and her husband paid their full share of $250. Apparently, no deed evidencing the sale was ever executed.

In 1963, Cornelius Johnson (defendant's husband) died and shortly thereafter, John Henry Smith (decedent's husband) died. Thereafter Mary had the property surveyed without Carrie's knowledge. On October 14, 1963, a deed of conveyance was executed transferring the property from Anna Sharp to Mary following a subdivision of the property requiring a variance from the planning board. Carrie and Roy Sharp were unaware of either the deed or the subdivision proceeding. Carrie claimed that thereafter Mary told her that since her husband had died, she (Mary) could not pay the taxes by herself so they agreed to share the expense of the taxes. Subsequently, Carrie did pay the "taxes" to Mary. Mary died November 3, 1983 and plaintiff, Warren H. Carr (Carr), became executor of her estate.

Carr claimed that the payments made by Carrie were for rent and not for taxes. He was allowed to testify that he was informed that Carrie had been paying rent before Mary died. After Mary had died, he requested of Carrie that she continue to pay the rent which she did. On these occasions he gave her a receipt which indicated that the payments were for rent. Although Carrie knew that the receipts were marked as rent

she did not question them, asserting that under her agreement with Mary the money was for taxes. At that time the taxes were $1900 per year. The money Carrie allegedly paid as rent would have roughly equalled one-half of the taxes. In 1984 she paid $60 per month for December, January, February, March and April, then $100 per month for May and June, 1984. There was no evidence concerning the amounts she paid when Mary was alive or how much the taxes were during that time.

Carrie readily admitted that she knew nothing about any of the title papers for the property. She claimed that whenever she would ask her aunt Mary about the property, Mary would not tell her anything or would change the subject. Mary would ask Carrie if she knew anything about the title to the property, and Carrie would respond by saying that she knew nothing because her late husband had handled the matter.

Carr claimed that they had offered to sell the property to Carrie and that she had never challenged the offer with any claim of ownership. Carrie testified that she was never asked about purchasing the property but that her son was asked because he was named as the beneficiary in Mary's will. Carr then undertook to sell the property on behalf of Mary's estate and to evict Carrie. Carrie was unaware that her name was not on the deed until she received the notice to quit. Once Carrie received the notice to vacate the property, she stopped paying any monies.

Carr instituted this dispossess action seeking a judgment for possession and a warrant for Carrie's removal. At the summary hearing it became apparent that Carrie was claiming ownership of that portion of the property on which her house was located. She acknowledged that she possessed no title documents but asserted that she was entitled to an adjudication that a resulting or constructive trust had arisen for her benefit. Carr produced the ...


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