Italian-Am. Bldg. & Loan Ass'n of Passaic County v. Russo

• Decision Date: 18 September 1942
• Docket Number: No. 201.,201.
• Citation: 132 N.J.Eq. 319,28 A.2d 196
• Parties: ITALIAN-AMERICAN BUILDING & LOAN ASS'N OF PASSAIC COUNTY v. RUSSO et al.
• Court: New Jersey Supreme Court

28 A.2d 196

132 N.J.Eq. 319

ITALIAN-AMERICAN BUILDING & LOAN ASS'N OF PASSAIC COUNTY

v. RUSSO et al.

No. 201.

Court of Errors and Appeals of New Jersey.

Sept. 18, 1942.

Syllabus by the Court.

1. Facts examined and held to warrant a finding that there was an error in the description of lands in a mortgage and sheriff's deed following foreclosure which the complainant is entitled to have corrected.

2. Where there is a devise in a will by general description consisting only of street and number, the house and such parts of the lands of testator as he has treated as appurtenant thereto pass under the devise, including a portion of another lot owned by testator which he had fenced off from the rest of the tract with which he acquired it and had enclosed with the land on which the house devised stood.

3. This cause is within the jurisdiction of the Court of Chancery, it being necessary, in order to afford complainant complete relief, to reform the description in the mortgage and to construe a will.

Appeal from Court of Chancery.

Suit by the Italian-American Building and Loan Association of Passaic County against Charles A. Russo and others for strict foreclosure and for various other forms of relief with respect to certain realty. From a decree of the Court of Chancery, 130 N.J.Eq. 232, 21 A.2d 857, in favor of the complainant, the defendants appeal.

Decree affirmed.

Theodore D. Rosenberg, and Sam Mendelsohn, both of Paterson, for appellants.

Henry Marelli, of Paterson, for respondent.

DONGES, Justice.

This is an appeal from a decree of the Court of Chancery in a suit for strict foreclosure and for various other forms of relief with respect to certain real property.

From the testimony certain uncontroverted facts appear. It appears that one Urbano Zazzella owned two certain tracts of land in Paterson, one facing on the southerly side of Oliver street, and known as No. 132 Oliver street, and the other facing on the westerly side of Jersey street, and known as 64 Jersey street. The backs of these lots were contiguous. Both lots were about twenty-five feet in width. The Oliver street lot was fifty feet in depth and the Jersey street lot was one hundred feet in depth, according to the descriptions in the deeds by which Zazzella acquired them. The Jersey street lot extended precisely across the rear of the Oliver street lot, and he had for years devoted the rear twenty-five feet of the Jersey street lot to the uses and purposes of the Oliver street property, so that, for practical purposes, there were really two seventy-five feet deep lots. The Oliver street property consisted of an apartment house and the building thereon was extended over into the twenty-five feet square in question in the rear of the two lots. In addition, Zazzella had constructed a concrete wall along the easterly line of the twenty-five feet square, thus separating it from the balance of the Jersey street lot, and had continued the concrete wall along the southerly line of the twenty-five feet square, as well as along the westerly line of the plot. The only opening in this wall was an iron gate on the easterly side, communicating with the Jersey street lot.

In 1928, Urbano Zazzella and his wife executed a mortgage to the complainant in the sum of $4,000 covering two tracts of land, the first of which was the Oliver street property by the description by which he acquired it, and the second of which was the rear twenty-five feet of the Jersey street lot which was being used with the Oliver street lot.

The Zazzellas had five daughters and three sons. Zazzella, Sr., died in 1932, and by his will devised the Oliver street property to his son Luigi, the Jersey street property to his five daughters, and other property not here involved to his other two sons. The devises were by reference to street numbers only of the several properties, there being no detailed description of the lots devised. The devises to the children were subject to a life estate in the widow.

In 1934, the complainant's mortgage being in default, an attempt was made at re-financing. The $4,000 mortgage was cancelled of record. Luigi Zazzella and his wife, and Urbano's widow executed a new mortgage in the sum of $3,400. Two tracts were covered, the Oliver street property by the description by which it was acquired by the father, Urbano, and another tract. Obviously, what was intended was that the second tract described in the prior mortgage should be included, but due to an error in laying the east and west courses in the description that tract was not included, but a twenty-five feet square tract immediately west and to the rear of the tract described in the prior mortgage was described in this mortgage. None of the Zazzellas ever had title to this tract, and the uncontradicted testimony was that the tract was erroneously described and that the purpose was to include the second tract described in the mortgage first executed.

Of course, the persons who executed the subsequent mortgage, except the widow, had no interest in the second tract, as described in the prior mortgage, unless it be held that the will passed the properties in the form in which they had been used by the testator rather than according to the descriptions by which he acquired them, because that second tract originally came to the father as a part of the Jersey street lot which he devised to his five daughters.

In May, 1937, the widow, four of the daughters and the husbands of the married daughters, executed a deed to the Jersey street lot, by the description by which the father had acquired it, to the fifth daughter and her husband, who are the appellants here. As stated, that description included the rear twenty-five feet square plot, intended to be included in the last mortgage executed, but erroneously described therein.

In August, 1937, complainant filed a bill to foreclose its mortgage making the widow, Luigi Zzazella, the son, and his wife, and the appellants here parties defendants. That foreclosure was uncontested and...