Ehnes v. King

• Decision Date: 20 September 1956
• Docket Number: No. A--498,A--498
• Citation: 125 A.2d 349,41 N.J.Super. 429
• Parties: Fred C. EHNES, Assignee, Plaintiff-Respondent, v. Irene KING, now known as Irene R. Connelly, Defendant-Appellant. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 429

41 N.J.Super. 429

125 A.2d 349

Fred C. EHNES, Assignee, Plaintiff-Respondent, v.Irene KING, now known as Irene R. Connelly, Defendant-Appellant.

No. A--498.

Superior Court of New Jersey Appellate Division.

Argued Aug. 20, 1956.

Decided Sept. 20, 1956.

Frank E. Vittori, Camden, argued the cause for defendant-appellant(John Henry Reiners, Jr., Camden, attorney).

Benjamin Nessanbaum, Bayonne, argued the cause for plaintiff-respondent.

Before Judges PROCTOR, WAESCHE and HETFIELD.

The opinion of the court was delivered by

PROCTOR, J.S.C.(temporarily assigned).

Plaintiff is the assignee of a judgment secured against the defendant in the sum of $8,810.32 on February 18, 1930.The judgment was entered on confession of a bond and warrant allegedly executed by the defendant and her husband on November 18, 1925.At the time of the entry of the judgment the defendant was a resident of Pennsylvania and continued to reside there until 1953 when she moved to New Jersey.In March 1956the plaintiff filed a complaint to revive the judgment and an order was entered directing the defendant to show cause why a judgment of revivor should not be entered on plaintiff's application.The defendant filed an answer and also a notice of motion to vacate or reopen the judgment.The statute of limitations is not involved.N.J.S. 2A:14--22, N.J.S.A.

The matter was argued in the Law Division on affidavits and counter-affidavits of the parties.The affidavits of the plaintiff assert that the bond and warrant, together with a second mortgage on lands in Moorestown, New Jersey, were given for a loan by the Broadway Merchants Trust Company to the defendant and her husband; that the first mortgage on the land was foreclosed in 1929, the defendant having been personally served in Pennsylvania with the subpoena and an amended bill of complaint.No answer was filed by the defendant.It is further asserted by the plaintiff that two years before the institution of the foreclosure proceedings the defendant and her husband, who owned the mortgaged property as tenants by the entirety, conveyed it to a third person who in turn conveyed it to the defendant individually.The final decree in the foreclosure proceedings adjudged the sum of $8,681.17 to be the amount due to Broadway Merchants Trust Company on its bond and mortgage.The proceeds from the resulting sale were insufficient to satisfy the first mortgage, whereupon Broadway Merchants Trust Company entered the judgment mentioned above and assigned it to the Federal Deposit Insurance Corporation, which corporation later assigned it to the plaintiff.

Defendant's affidavits assert that the writing purporting to be her signature on the bond and warrant on which the judgment was entered is a forgery or, if otherwise, was obtained as a result of fraud or mistake; that her husband died in 1929; that for several years before his death she was unfamiliar with his business transactions, and that until the institution of this action she had no knowledge that she was ever the owner, either individually or jointly, of any real estate in Moorestown, New Jersey; that shortly after her husband's death demand was made upon her to pay a promissory note allegedly executed by her and her husband in favor of the Broadway Merchants Trust Company, the original obligee on the bond and warrant on which the judgment was entered; that upon examination of the note she disclaimed it as a forgery; that others concurred in this view and the bank took no further action.She further asserts that she is informed and believes that 'this original forged note, executed at approximately the same time as the subject bond and warrant,' is in the possession of the plaintiff.The latter statement is not controverted by the plaintiff.In a supplemental affidavit she asserts that she has no knowledge or recollection of ever having executed a mortgage or a bond and warrant either individually or jointly with...