Leppert v. Leppert

• Decision Date: 15 January 1948
• Docket Number: 147/472.
• Citation: 56 A.2d 568
• Parties: LEPPERT et al. v. LEPPERT et al.
• Court: New Jersey Court of Chancery

56 A.2d 568

LEPPERT et al.

v.LEPPERT et al.

147/472.

Court of Chancery of New Jersey.

Jan. 15, 1948.

Suit by Burell Leppert, Margaret Leppert, and Anna Leppert, against Carol Leppert and George Leppert, Jr., an infant, to recover property allegedly held in trust for them.

Dismissal of the bill advised.

Syllabus by the Court.

1. An express trust in land must be manifested and proved by a writing signed by the party to be charged with the trust.

2. A tenant in common in possession and enjoyment of a common property occupies a confidential relation to his co-tenants, and because of this relation there is an implied obligation on his part to sustain and protect the common title.

3. Where a co-tenant in possession of common property purchases that property, either directly or indirectly, at a sale under foreclosure of a mortgage or deed of trust, the purchase will be deemed to have been made for the benefit of all of the co-tenants, provided that the other co-tenants elect within a reasonable time so to consider the purchase and offer to contribute their respective proportions of the purchase price.

4. Whether the aforementioned implication of the trust relation is applicable to a tenant in common who without concealment or deception purchase at a partition sale is not decided.

5. In the circumstances of this case inordinate delay in the assertion of alleged rights reflects doubt upon their substantiality, and sustains the defense of laches.

Strong & Strong, of New Brunswick, for complainants.

John A. Lynch, of New Brunswick (Morris Spritzer, of New Brunswick, of counsel), for defendants.

JAYNE, Vice Chancellor.

A narrative of the subject matter of this cause may well be confined to a summary of the principal facts.

On January 2, 1920, one Margaret Leppert, the mother of the complainants, died intestate seized in fee simple of premises identified as No. 128 Remsen Avenue, in the City of New Brunswick. She left her surviving as her heirs at law five children, named Eleanor, George, Burell, Margaret, and Anna, all of whom were her co-occupants of the premises.

On February 12, 1923, the eldest child, Eleanor, married Edward Nevius and on April 28, 1926, she instituted a suit in this court to partition the property among the heirs. Burell, Margaret, and Anna were then infants under the age of twenty-one, for whom a guardian ad litem was duly appointed. George, who was of full age, purchased the premises at the master's sale on September 7, 1926, for $10,000. On September 21, 1926, an order was made authorizing the master to make the designated distributions of the proceeds of the sale to the several tenants in common. All in due course received, and have ever since retained, their monetary shares amounting to $2,778.73 each.

George and his sisters other than Mrs. Nevius thereafter continued for a period of time to reside in the premises. It is significant to note that Burell became of age on October 12, 1926, Margaret on September 2, 1928, and Anna on October 24, 1932. George thereafter married and established a separate residence for himself and wife at another location. Burell, Margaret, and Anna have continued to occupy an apartment in the Remsen Avenue property.

On June 3, 1946, George died intestate. His wife and an infant son, now seven years of age, survive. Those are the cardinal events constituting the background of the present litigation.

Concisely stated, the complainants, Burell, Margaret, and Anna, now allege that their brother purchased their respective estates in the premises in trust for them, and they seek a decree obliging the defendants to restore to them their respective interests upon payment by the complainants of such amount as may be determined to be due from them.

The undertaking to establish an express trust solely by proof of the oral declarations of their deceased brother is futile. R.S. 25:1-3, N.J.S.A.; Willing v. Friedberg, 108 N.J.Eq. 17, 153 A. 535.

This court has, however, adopted the principle that a tenant in common in possession and enjoyment of a common property occupies a confidential relation to his co-tenants and because of this relation, there is an implied obligation on his part to sustain and protect the common title. And so, subject to certain qualifications to which I shall presently refer, the rule has been recognized that ...