Baker v. Baker

• Decision Date: 19 February 1925
• Docket Number: No. 8.,8.
• Citation: 127 A. 657
• Parties: BAKER v. BAKER et al.
• Court: New Jersey Supreme Court

127 A. 657

BAKER

v. BAKER et al.

No. 8.

Court of Errors and Appeals of New Jersey.

Feb. 19, 1925.

Appeal from Court of Chancery.

Suit by James V. Baker against Joseph A. Baker and others. From decree of dismissal, complainant appeals. Affirmed.

Cole & Cole, of Atlantic City, for appellant.

Bourgeois & Coulomb, of Atlantic City, for respondents.

KALISCH, J. The appellant appeals from a decree in the court below dismissing his bill for partition of certain premises in the town of Hammonton. The facts are that prior to September 20, 1917, the appellant was the owner of an equal undivided one-third interest in the land in question. On the aforementioned date the appellant conveyed his interest therein to Joseph A. Baker, his brother.

Subsequently Joseph, at the request of the appellant, paid out, at the latter's request, $1,500. The nature of the transaction was in dispute between the brothers, and led finally to a bill being filed by the appellant in the Court of Chancery on December 9, 1921, against the respondents to recover, to the appellant, an equal undivided one-third interest in the property in question. The cause came on for a hearing before Vice Chancellor Learning, and eventuated in a decree for the appellant to this effect:

"That defendant convey to complainant (appellant here) an equal undivided one-third interest in and to the premises described in the bill of complaint, free and discharged of any lien or incumbrance created by or against him since the date of said deed of September 20, 1920, so far as complainant's equal undivided one-third interest is concerned, upon complainant's paying to defendant the sum of $1,500 with interest from the date of such payment by defendant for the benefit of complainant, which sum with interest is made a lien upon said premises."***

The appellant, so far as it appears, never complied with the condition contained in the decree, and there is no pretense that there is anything on record, or that there was any act done in pursuance to the decree, which was, in law or in equity, equivalent to a reconveyance of the property to the appellant and the investing of title in him thereto.

But, notwithstanding this situation, the appellant filed a bill for partition, on May 5, 1923, alleging that he was seized and entitled to one-third equal undivided part of the premises in question. The proof failed to establish this essential prerequisite to the filing of the bill. The appellant, admittedly, relied on the decree directing a conveyance to be made to him upon condition that he pay to the respondent $1,500, with interest, as entitling him to bring a suit for partition, but that direction depended upon the appellant first complying with the condition. It is true that the appellant claims that he made a tender of the amount due to the respondent, but this is disputed, and it...