Hupsch v. Resch

• Decision Date: 24 August 1889
• Parties: HUPSCH v. RESCH.
• Court: New Jersey Court of Chancery

18 A. 372

45 N.J.E. 657

HUPSCH

v. RESCH.

Court of Chancery of New Jersey.

Aug. 24, 1889.

(Syllabus by the Court.)

On bill, answer, and proofs.

Gerber & Norman, for complainant. A. Englebrecht and Mr. Ransom, for defendant.

PITNEY, V. C. This is a bill to reform a deed of conveyance of land. The conveyance was made by the sheriff of Union county to Henofoefa Hubsch, (since deceased,) who was the wife of the complainant, and whose real name was Henofoefa Hupsch, and is dated January 30, 1878, and was proven February 4, 1878, before a master. The name of the grantee must have been blank at that time, as neither Mr. nor Mrs. Hupsch was present at the sale, nor had they anything to do with the property previous to about May 1, 1878. It was sold under foreclosure at the suit of one Ernest Crome, who, by his solicitor, Mr. B. A. Vail, bid it off at the sale, but did not take the deed from the sheriff's office. Subsequently Crome, through one Winkler, a broker, negotiated a sale of the property either to complainant or to his wife, or to both, and complainant and his wife and Crome met at Mr. Vail's office in Rahway to complete the transaction. Mr. Vail was Crome's solicitor in the foreclosure suit, and was not in anywise the counsel for Mr. or Mrs. Hupsch. Crome lived at Jersey City, and had not brought his wife with him to Rah way, so that the transaction could not be carried through that day by passing the title through Crome in the ordinary way. It was then suggested by Mr. Vail that he could have the name of the new purchaser inserted in the sheriff's deed, to save the expense and trouble of a conveyance from Crome; and he went himself to Elizabeth, and procured from the sheriff the deed in its present shape, and returned with it to his office, where the parties had waited. The purchase money was paid by either the complainant or his wife to Crome, and the deed was delivered and recorded. Complainant and his wife took possession of the premises under the deed, and occupied them, either in person or by tenants, until 1887, when the wife was killed by a passing train at Rahway Junction, near which the property was situated.

The contention of the complainant is that he should have been joined with his wife as grantee in the deed, and that the failure to write his name jointly with hers in the instrument was a mistake, and he asks this court to rectify it by reforming the deed in that respect. He says, in support of his equity, that the money paid for the property was his money, or at least his and his wife's jointly; and he swears that he requested Mr. Vail to put his name in the deed with his wife's. The evidence shows that on April 29, 1878, a written contract was drawn up and signed by Crome by which he agreed to sell the property in question to complainant, and on the back of the contract is a receipt signed by Crome, for $10, received from complainant on account of the purchase money. No mention is made of his wife in the document. On April 30th complainant, by his individual draft, drew from the Hoboken Savings Bank $457.50, which stood to the credit of L. & G. Hubsch, and the bankbook in which the credit was entered was indorsed, "Lorenzo and Genorefa Hubsch," in the handwriting of the clerk of the bank, who made it up. Complainant swears that this money belonged to him; that it was the proceeds of the sale of property which he owned in New York state in his own name, and which he purchased before his marriage with the deceased; and that he used it, with other moneys of his own, to pay for this property. He does not explain why it was deposited in bank in the joint names of himself and his wife, but the bank clerk swears that such was a common practice, and that the money was subject to be drawn by either party. I do not find anything in the evidence to contradict the complainant in his evidence and statement thus far. He further says that previous purchases of real estate made by him and his wife were taken in their joint names, and produces two deeds which support his statement in that behalf. But when we come to the transaction itself, the affair is not so clear. Complainant swears that he carried the money to Rah way in his pocket; that when it was proposed that Mr. Vail should go to Elizabeth to have the sheriff's deed made direct to the purchaser from Crome, he told Mr. Vail to have it made to him and his wife. On the contrary, Winkler swears that at the interview he had with complainant and his wife at their house in Weehawken, some days before the delivery of the deed, Mrs. Hupsch insisted on having the deed made in her name alone, and that complainant told him so, and that his wife was dissatisfied because previous purchases had been made in their joint names, and that Hupsch did not object to her demand to have the title in her name alone. Mr. Crome, who was present at the delivery of the deed, swears that Mrs. Hupsch said at that time that "if it is signed in my name I give the money for it, and pay for it," and that she took the money from her satchel and paid it to him, and that he delivered the deed to her; and further on he repeated what she said in somewhat different language: "If I don't get the deed in my name I don't pay the money." Complainant further swears that when Mr. Vail returned with the deed he (complainant) asked Mr. Vail whose name was in the deed, and that he looked and answered: "Only my wife's name was in it only.' It an't right,' I said; 'there an't both names in.' Senator Vail said that can be done. I can't read English. I do not understand English very well. In 1878 I did not understand English as much as I do now. Question. When Senator Vail said to you, when you spoke to him about the names in the deed, that it could be done, what did you understand by the remark? Answer. I understand it can be done. Q. Understood what? That it could be done then or some other time? A. That I did not know, whether then or some other time." Mr. Vail's account of the...