Et Ux. v. Blachowski

• Decision Date: 07 September 1944
• Docket Number: 149/684.
• Citation: 39 A.2d 94
• Parties: BLACHOWSKI et ux. v. BLACHOWSKI et al.
• Court: New Jersey Court of Chancery

39 A.2d 94

BLACHOWSKI et ux.

v.BLACHOWSKI et al.

149/684.

Court of Chancery of New Jersey.

Sept. 7, 1944.

Suit in equity by Peter F. Blachowski and wife against Stanley Blachowski and another to annual or reform a deed from complainants to named defendant.

Decree for complainants.

1. A deed is inoperative and passes no title unless it is delivered by the grantor and accepted by the grantee.

2. An essential element of delivery is the intent of the grantor that the deed shall become immediately effective as a conveyance in accordance with its terms.

3. Although the recording of the deed raises a presumption of delivery, recording does not, of itself, constitute delivery unless, under the circumstances, the register of deeds may be deemed the agent of the grantee.

4. P, without consideration, gave a deed to S, conveying full title to certain land. P did not intend to vest in S immediate right to the exclusive possession of the property and did not understand that the deed would have that effect. Held, that S should reconvey to P upon the latter tendering to him the value of improvements made by S in the belief that he was owner of the property.

Milton M. Unger, of Newark, for complainants.

Herman W. Kurtz, of Newark, for defendants.

BIGELOW, Vice Chancellor.

This is a suit to annul or reform a deed dated February 5, 1940, made by complainants to their son Stanley. Besides the son, the couple have two daughters, Mrs. San Jiacamo and Mrs. Inboden. Stanley Blachowski has been a member of the Irvington police for since 1931. Married in 1936, he and his wife lived with his parents until 1938, when they moved to their own home. The complainants, of Polish origin, speak English, but Mrs. Blachowski cannot read that language and her husband reads it only with difficulty. At the time of the transaction in question, he worked in the factory of Specialty Leather Products Company, which was managed by one Bruno Berk, a member of the Bar.

Blachowski owned property on Mt. Vernon Avenue, Irvington, 85 feet front by 400 or so feet deep, encumbered by an H. O. L. C. mortgage and a second mortgage held by a building and loan association. On one side of the lot toward the street is the small house where he and his wife were living. Early in 1940, Blachowski asked his employer, Berk, to draw wills for him and his wife. Each desired that the one who died first should leave his or her property to the other; that the house and the lot on which its stands would go eventually to the son Stanley and the adjoining lot to the daughters. They wanted Stanley to have the house after their deaths but the old folks were to have the right to live there as long as they lived. They also intended that Stanley should know of the provision for him and hoped it would influence him to come and live with them and bear part of the carrying charges of the house. There was, however, no bargain on the subject.

The lawyer prepared a will for each complainant, giving everything to the other, and providing in the event the other should be the first to die, all should go to the daughters. There is no mention of the son in the wills. Berk, however, at the same time, prepared a third instrument, the deed in question, conveying to Stanley the house and lot, 40 feet front. The deed embodies full warranties; also a clause whereby the grantee assumed the mortgages and all unpaid taxes. The deed contains this unusual sentence: ‘This conveyance is made with the following covenant and condition: That the second party cannot sell, convey, mortgage or encumber the tract herein conveyed during the lifetime of the parties of the first part without the written consent of the party of the first part.’

Blachowski and his wife, with Stanley, called on Berk at the factory to execute their wills. They signed the wills and the deed as well, although they did not understand that it gave Stanley immediate and sole title to their home. They thought it would operate so that Stanley would have the house after their deaths and that they would have the right to live there as long as they should live. Stanley knew that they so understood. If he grasped the real effect of the deed, he kept his knowledge to himself. ‘I explained,’ Berk testifies, ‘that that was the way I would do it,’ to accomplish complainants' purposes. After the deed was recorded, it was returned to Berk, pursuant to his direction, and was retained by him, although he furnished a copy to Stanley. Complainants did not see the deed or a copy of it after they had signed it, until trouble with Stanley started last fall.

First, the question of delivery of the deed. A deed is inoperative and passes no title unless it is delivered by the grantor and accepted by...