Hubatka v. Maierhoffer

• Decision Date: 06 March 1911
• Citation: 79 A. 346,81 N.J.L. 410
• Parties: HUBATKA et al. v. MAIERHOFFER.
• Court: New Jersey Supreme Court

79 A. 346

81 N.J.L. 410

HUBATKA et al.

v. MAIERHOFFER.

Court of Errors and Appeals of New Jersey.

March 6, 1911.

Error to Supreme Court.

Action by Maria Hubatka and husband against Frank Maierhoffer. A judgment for plaintiffs was affirmed by the Supreme Court (75 Atl. 454), and defendant brings error. Reversed.

Alan H. Strong and W. R. Wilson, for plaintiff in error.

William D. Wolfskeil, for defendants in error.

GUMMERE, C. J. This writ of error brings up for review a judgment of the Supreme Court, affirming a judgment of the Union circuit court rendered in favor of the plaintiffs in an action of ejectment brought by them against the defendant. The suit was brought to recover an undivided half interest in a tract of land conveyed by Jacob Martin and wife to the defendant, and to Josephine Shelka under the name of Josephine Maierhoffer. Josephine Shelka was the mother of the plaintiff, Maria Hubatka, and died before this action was brought. The rights of the parties depend upon whether or not at the time of the conveyance Josephine was the wife of the defendant. If she was, then the husband and wife took under it an estate by the entirety, and upon the death of Josephine the whole estate vested in the husband as survivor. If she was not, then she and the defendant were tenants in common of the estate conveyed, and upon her death her undivided interest in it passed to her daughter.

We concur in the view expressed by the Supreme Court that the motion to nonsuit the plaintiff was properly refused, for the reason that there was sufficient evidence offered and received to support the conclusion that the defendant and Josephine Shelka were not husband and wife at the time of the conveyance to them.

It is contended before us that the plaintiff was estopped to deny that the defendant and Josephine were married at the time of the conveyance to them, for the reason that the recital, or statement, therein that Josephine was the wife of the defendant is binding upon ail parties to the deed and their privies. We find nothing in the record, however, to show that any such contention was made before the trial court, or was made the subject of an assignment of error on the review by the Supreme Court. That being so, it cannot be considered by us as a ground for reversal.

The conclusion of the Supreme Court that proof of statements testified to have been made by Josephine during her lifetime, not in the presence of the defendant, tending to show that she was...