Feldman v. Warshawsky

• Decision Date: 30 December 1937
• Citation: 122 N.J.Eq. 596,196 A. 205
• Parties: FELDMAN v. WARSHAWSKY et al.
• Court: New Jersey Court of Chancery

196 A. 205

122 N.J.Eq. 596

FELDMAN

v. WARSHAWSKY et al.

Court of Chancery of New Jersey.

Dec. 30, 1937.

Syllabus by the Court.

1. Where the agreement is to give a mortgage to a husband and wife, either or both may maintain a bill for its enforcement, and, upon the wife's refusal to join with her husband, she may be properly joined as a defendant, the reason for such joinder being stated in the bill.

2. An agreement to dedicate property to a particular purpose or debt creates an equitable lien thereon in favor of the party for whom such dedication is made.

3. If the intent to charge or pledge property as security for an obligation appears and the property is sufficiently identified, an equitable lien or mortgage arises thereon.

4. An agreement to give a mortgage on specified property creates an equitable mortgage thereon.

5. The payment of the monetary consideration or complete performance by one seeking enforcement of an agreement to give a mortgage is sufficient part performance to remove the agreement from the bar of the statute of frauds.

6. The omission from an agreement of a due date for a mortgage to be executed and the rate of interest to be paid thereon will not render the agreement so uncertain as to defeat the specific performance thereof.

Suit by Marx Feldman against Rose Warshawsky and others.

Decree for complainant.

Mendelsohn & Mendelsohn, of Paterson, for complainant. Edward F. Merrey and Peter Cohn, both of Paterson, for defendants.

LEWIS, Vice Chancellor.

Complainant seeks to have an equitable lien or mortgage impressed in favor of himself and his wife upon certain lands of his mother-in-law, who, together with her husband and her daughter, complainant's wife, are made defendants herein. The basic ground for the desired relief is, as here alleged an agreement on the part of complainant's parents-in-law to give him and his wife a mortage upon his mother-in-law's property at 98-100 Broadway, Paterson, pursuant to and upon the strength of which she and her husband obtained from complainant and his wife the sum of $8,556.25.

Upon the conclusion of the case, objection was voiced to complainant's right to maintain his present action in the face of his wife's refusal to join with him therein. In this contention, however, there appears no merit. By rule 6 of the rules of this court, appearing in Schedule A appended to the Chancery Act of 1915, P.L. 1915, pp. 184, 187, all persons claiming an interest in the subject matter of the action or in obtaining the relief therein sought, either jointly, severally, or in the alternative, may join as complainant and, upon declining to do so, may be joined as defendant; the reason for so doing being stated in the bill of complaint.

In consonance with the provisions of this rule, the bill having alleged and the proof having shown her refusal to join her husband in his suit against her parents, complainant's wife was subsequently properly joined as defendant therein. This is in accord with the principle enunciated in Oppenheimer et al. v. Schultz et al., 107 N.J.Eq. 192, 152 A. 323, 324, where it was said: "it is clear that in this state, at least since the Chancery Act of 1915 (P.L. 1915, p. 184 [Comp.St.Supp. 1924, § 33 —114 et seq.]), where a mortgage is given to a man and his wife, and one dies, either the survivor or the executors of the deceased mortgagee may institute foreclosure proceedings, joining as defendant the one who refuses to join as complainant." Were the rule otherwise, its inevitable result in the instant case would be to place it within the power of complainant's wife to prevent him from enforcing his rights and to leave him remediless against her parents by merely refusing to join in the suit with him; a situation disdainful, indeed, to the most rudimentary precepts of common ordinary justice and equity.

As viewed in the light of its plausibility, the evidence clearly and convincingly establishes a promise on the part of complainant's mother-in-law and father-in-law to give the mortgage or equitable lien here sought and the subsequent receipt by them of the sum of $8,556.25 from complainant and his wife upon the strength thereof. The loan thus made and received was first broached on May 1, 1933, by complainant's parents-in-law on the occasion of their then visit to the home of his parents. It was during the course of a then conversation relative to the critical banking situation, that complainant's parents-in-law spoke of their doubts about the soundness of banks; professed a grave fear for the safety of the money which complainant and his wife then had on deposit therein; and then expressed their willingness to borrow said funds, utilize them towards the payment of an alleged mortgage, then represented by them as being upon the lands in question, and to thereafter give complainant and his wife a mortgage upon said lands, and in that manner afford them not only a sounder security for, but also a greater interest return upon, their said funds.

Impressed with the attractiveness of that offer, but wholly unaware of its potentialities and the real purpose which motivated it, complainant promptly accepted it. When apprised by his parents-in-law of their not needing the funds prior to the day to be thereafter arranged for the cancellation of the alleged existing mortgage, complainant stated that, in view of his contemplated business trip to Florida, he would transfer all of the money to his wife's name alone, so as to enable them, in his absence, to secure it from her as and when they might desire.

These, in brief, are the cardinal facts as testified to by complainant, his mother, and, as per stipulation, his father, all of whom were present on the occasion and participated in the conversations in question. This testimony on their part is abundantly corroborated by the impressive and not unnoticeable frank and candid demeanor of each of these witnesses, by the strong plausibility and probability of the facts as testified to by them, as well as by the prior and subsequent acts and conduct of all of the parties in interest to the present litigation. None of these facts, except for the mere naked and unimpressive denial of defendants, were in anywise here challenged. As thus viewed, it is in fairness impossible not to give credence to the clear and convincing testimony of complainant and his witnesses that his parents-in-law promised and were to give him and his wife a mortgage on the property at 98-100 Broadway, Paterson, which property then was, and still is, admittedly owned by his mother-in-law, for securing the repayment of the money which she and her husband admittedly received from them.

It might not be amiss to here make passing observation with respect to a few of the irrefutable facts, strongly corroborative of those hereinabove mentioned, viz., the admitted ownership by complainant and his wife of joint bank accounts with deposits therein aggregating at least the sum of $8,500; the apprchensiveness of complainant-following the discussion of May 1, 1933 between him, his parents and parents-in-law relative to the then recent bank closing with its afterattendant acute banking situation and visitation of losses upon numerous depositors-with respect to the stability of banks in general and those wherein he was a depositor in particular; the then indebtedness of complainant's mother-in-law and father-in-law to the Citizens Trust Company of Paterson in the approximate sum of $9,500 on all of which they were charged and paid interest at the rate of 6 per centum per annum, while their daughter and complainant were receiving but the sum of 3 1/2 per centum, or less, per annum on their deposits; the transferring by complainant of all of said funds to the name of his wife alone within a few days after his expressed intention to do so; the lending of all of these funds, amounting to $8,556.25, by complainant's wife to her parents during the period extending from May 17 to June 1, 1933, and their utilization thereof for the purpose of partially paying off their indebtedness, already due on May 3, 1933, to the Citizens Trust Company of Paterson.

In addition to the foregoing, it is fairly deducible from the evidence that, then unbeknown to complainant, his parents-in-law had developed and were harboring a strong dislike for him and a still stronger like for the return of the money which they had previously given to him and his wife as an outright wedding gift, all of which they now begrudged him and under different pretexts on at least two previous occasions had unsuccessfully attempted to regain; that, shortly after they finally obtained the funds in question, complainant's parents-in-law caused complainant's wife to become estranged and finally separated from him, and thereafter ordered complainant from their home, complainant's wife, despite his request, having refused to accompany and go to live with him; she herself having unequivocally stated on the witness stand that she would not live with him.

Nor does the fact that no mortgage existed upon the property in question tend to demonstrate, as defendants contend, the incredibility of the testimony adduced on behalf of complainant that his mother-in-law stated there was such a mortgage, the cancellation of which she intended to obtain by means of the funds in question. That fact, on the contrary, cogently be-speaks the verity of that testimony and the untruthfulness of the statement made by complainant's mother-in-law; for it was she, and not complainant or his witnesses, who stated that there was such a mortgage in existence when in truth and in fact there was none. Moreover, this fact also lends forceful support to complainant's claim that his mother-in-law's representation to him with respect to the existence of such mortgage was, as he subsequently discovered, but a mere pretext and ruse on her part to lead him to believe that she then had an existing need for the money as...