Basak v. Damutz
| Decision Date | 16 December 1926 |
| Citation | 135 A. 453,105 Conn. 378 |
| Parties | BASAK v. DAMUTZ ET UX. |
| Court | Connecticut Supreme Court |
Appeal from Court of Common Pleas, New Haven County; Walter M Pickett, Judge.
Action in equity by Victoria Basak against John Damutz and wife to set aside an alleged fraudulent conveyance, and for damages tried to the court. Judgment for defendants, and plaintiff appealed. No error.
Franklin Coeller, of New Haven, for appellant.
Daniel D. Morgan and Philip Pond, both of New Haven, for appellees.
There appears to be no dispute as to the essential facts of this case, and no exceptions to the finding are taken. The complaint is in three counts and the relief sought is, first, the cancellation of a certain specified deed from one of the defendants to the other, and the removal of the record from the town clerk's books at North Branford, and, second, for damages. The case therefore turns upon the construction the law will put upon the established facts.
The first count is clearly not sufficient to furnish the relief sought in the first prayer, as it contains no specific reference to the transfer sought to be set aside. The sufficiency of both the first and second counts, as a basis for damages, is dependent upon whether the defendant Julia Damutz had any property of her own at the time of the claimed fraudulent conveyance or was estopped, under the circumstances of the case, from denying that she had property. The sufficiency of the third count depends on whether the transfer made by Julia Damutz to John Damutz was fraudulent, without consideration, and void.
The controlling facts are that on October 23, 1923, one Yorosky was arrested at the instance of the present plaintiff, for bastardy and bound over to the court of common pleas for New Haven county under a bond for $1,000 for his appearance. He was from that time until about September 1, 1924, represented by Attorney Shelnitz. On the day Yorosky was bound over, the defendant Julia was taken by Yorosky to the office of Attorney Shelnitz, and, with Yorosky as principal, executed the bond for $1,000 for his appearance. No one was present representing the plaintiff. It does not appear that the defendant Julia made any representations at that time as to her interest in or ownership of the property in question. She speaks little English and cannot write it at all.
At the time she executed the bond, she had no property of any kind, though the record title to the real estate in question stood in her name. This was a farm which had been substituted for certain other real estate owned by John, her husband, which he had conveyed to her in 1919, because of an impending serious operation on his part, with the understanding and upon her agreement that, if he did not survive the operation, the property would be hers; otherwise, not. The deeds required for these transfers were all acknowledged before Attorney Shelnitz, who was familiar with the history of the transaction. When the bond was signed the defendant John was away from home. He returned in a few days and learned that his wife had signed this bond and at once looked up Yorosky. Upon learning from him that Attorney Quinn represented the plaintiff, he immediately went to him and informed him that the bond was " no good," that his wife, the defendant Julia, owned no property, but that the farm belonged to himself, and insisted upon having the bond released. Attorney Quinn told him that he would take care of the matter and that it would be all right, but in fact he did nothing. The defendant John continued his effort to obtain the release until September, 1924, interviewing the plaintiff, as well as several attorneys, and repeating his claim that his wife had no property and that she had signed the bond without his knowledge or consent. The bastard child was born in January, 1924, but no action was taken in the bastardy case by amendment of the pleadings, although Yorosky remained within the jurisdiction. In September, 1924, the defendant John took the plaintiff to Attorney Coeller, who was then retained to press the bastardy action, and, at a later date, the defendant John gave the plaintiff $50 to pay Attorney Coeller. Yorosky had in the meantime gone out of the jurisdiction, and, though the defendant John asked the plaintiff to write to him to return, he refused to do so. Attorney Coeller promptly proceeded with the bastardy action, and judgment for the plaintiff was entered January 5, 1925, by default. In another action, judgment was entered for the plaintiff against the defendant Julia on the bond in question, January 23, 1925. No execution was issued, but on August 17, 1925, the plaintiff instituted the present action. In this action the body of the defendant Julia was attached August 18, 1925, and she was committed to jail, where she remained until released on special bail October 15, 1925. At the time the bastardy action was instituted, another action for debt was brought by the plaintiff against Yorosky, in settlement of which Yorosky assigned all his property to the plaintiff. The finding further shows that, when the bond was delivered to the plaintiff's attorney, neither he nor the plaintiff, then nor at any time before, knew, or had any reason to believe, that the defendant Julia owned the property in question; nor does it appear that they knew that she held the record title of this farm. It is apparent from the finding that neither the plaintiff nor her attorney relied upon the defendant Julia's title to the farm.
The fact is found and is not challenged that the farm was at all times the property of the defendant John, and that the defendant Julia never owned it. Since the first two counts are based upon the allegation that Julia had property and estate and the third count that this farm was her property and estate, there can be no recovery in this action unless there exists an estoppel in pais. The facts must be such that Julia and John, one or both, are equitably estopped to deny the defendant Julia's ownership which the record title suggests. This again can only come about in case there has been, either affirmatively or by silence when they should have spoken, some concealment, act, or misrepresentation upon which the present plaintiff relied to her detriment. An estoppel is not favored, and fraud is not to be presumed but must be strictly proven. The evidence must be clear, precise and unequivocal, and more particularly so where real estate titles are involved. " As a general rule * * * it...
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Kilduff v. Adams, Inc.
...of these factors were determinative in this court's adoption of the "clear, precise and unequivocal" standard. In Basak v. Damutz, 105 Conn. 378, 382-83, 135 A. 453 (1926), we applied the "clear, precise and unequivocal" standard to the plaintiff's claim that the defendant was equitably est......
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...of these factors were determinative in this court's adoption of the ‘clear, precise and unequivocal’ standard. In Basak v. Damutz, 105 Conn. 378, 382-83, 135 A. 453 (1926), we applied the ‘clear, precise and unequivocal’ standard to the plaintiff's claim that the defendant was equitably est......
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