Venetsky v. West Essex Bldg. Supply Co.

• Decision Date: 05 November 1953
• Docket Number: No. A--696,A--696
• Citation: 100 A.2d 291,28 N.J.Super. 178
• Parties: VENETSKY et ux. v. WEST ESSEX BLDG. SUPPLY CO., Inc. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 178

28 N.J.Super. 178

100 A.2d 291

VENETSKY et ux. v. WEST ESSEX BLDG. SUPPLY CO., Inc.

No. A--696.

Superior Court of New Jersey Appellate Division.

Argued Oct. 26, 1953.

Decided Nov. 5, 1953.

Benjamin Gittleman, Newark, argued the cause for appellants.

Francis F. Welsh, Montclair, argued the cause for respondent.

Before Judges CLAPP, GOLDMANN, and EWART.

The opinion of the court was delivered by

EWART, J.A.D.

A chronology of the events leading up to the controversy presented by this appeal is as follows:

January 22 1953--Eliza Gottsleben died a widow and intestate, resident at and seized of title to premises known as 81--83 West Kinney Street, Newark, N.J. She left her surviving as her only heirs-at-law and next-of-kin three children, viz., Clarence Fred Gottsleben, a son; Joseph William Gottsleben, a son; and Elsie May Day, a daughter, all of whom were of full age. No administration has ever been taken out on her estate.

January 26, 1953--By deed of this date, 'Clarence F. Gottsleben and Mildred Grace Gottsleben, his wife' conveyed all of their right, title and interest in and to the premises in question to Joseph W. Gottsleben. The deed was recorded January 30, 1953 in Book 3106 of Deeds for Essex County, page 158. The deed recited that he was one of the heirs-at-law of Eliza Gottsleben who died January 22, 1953.

February 9, 1953--By deed of this date, recorded March 5, 1953 in Book 3113 of Deeds for Essex County at page 480, Elsie May Day and Osborne Harold Day, her husband, conveyed all of their right, title and interest in and to the premises in question to Joseph W. Gottsleben.

February 16, 1953--An agreement in writing was entered into on this date between Joseph William Gottsleben, single man, as seller, and plaintiff Ruben Venetsky as buyer, by the terms whereof the seller agreed to sell and convey to the buyer by deed of bargain and sale, but free from all encumbrances, on or before March 15, 1953, title to the premises in question for a price of $5,000. The contract of sale contained the following recitals:

'Being the same premises conveyed to Eliza Gottsleben by deed dated October 26th, 1948 and recorded in Book S 112; Pages 147--148.

'The said Eliza Gottsleben died a widow and intestate on January 22nd, 1953 leaving her surviving three children, Elsie May Day, Clarence F. Gottsleben and Joseph William Gottsleben. The said Elsie May Day and Clarence F. Gottsleben have conveyed their interest in the above described property to Joseph William Gottsleben.'

And the contract of sale contained an express representation that all debts of the estate of Eliza Gottsleben had been paid; that the seller would execute an affidavit of title in the customary form; and a covenant that in the event it should afterwards appear that there were debts against the estate of Eliza Gottsleben, the seller would be personally liable for the payment thereof.

March 9, 1953--By bargain and sale deed bearing this date, Joseph William Gottsleben, unmarried, conveyed to the plaintiff Ruben Venetsky, title to the premises in question, which deed was duly recorded on the same day in Book 3114 of Deeds for Essex County, page 300. The deed contained the following recital:

'Being the same premises conveyed to Eliza Gottsleben by deed dated October 26th, 1948 and recorded in Book S 112; pages 147--148.

'The said Eliza Gottsleben died a widow and intestate on January 22nd, 1953, leaving her surviving three children, Elsie May Day, Clarence F. Gottsleben and Joseph William Gottsleben. The said Elsie May Day and Clarence F. Gottsleben have conveyed their interest in the above described property to Joseph William Gottsleben.'

On the same date as the deed last mentioned, and simultaneous with the execution thereof, Joseph William Gottsleben executed a long conventional form of affidavit of title in which is traced step by step the devolution of title to the premises in question, commencing with the deed from Munn to Ashfield in 1919 and continuing the same down into Eliza Gottsleben; stating the date of death of Eliza Gottsleben and the fact that she died a widow and intestate, leaving her surviving as her only heirs-at-law her three children as aforesaid, including 'Clarence F. Gottsleben'; stating the conveyance by Clarence F. Gottsleben Et ux., to deponent Joseph William Gottsleben, and the conveyance by Elsie May Day Et vir., to Joseph William Gottsleben, giving the dates of the deeds and the books and pages where recorded as above set forth; stating that title to the said premises was free and clear of all encumbrances, including judgments; that all debts of Eliza Gottsleben had been paid in full and that there were no federal estate taxes or transfer inheritance taxes due upon her estate; stating and agreeing that deponent would obtain a New Jersey inheritance tax waiver as promptly as possible and attend to recording the same in the Essex County Clerk's office at his own expense; agreeing that in the event any estate or inheritance taxes should thereafter be levied or become due, or should debts upon the estate of Eliza Gottsleben be thereafter made to appear, that is, debts that would be a lien on the premises in question, that the deponent would save Ruben Venetsky harmless from the same and be personally liable for the payment thereof; stating that the matters and facts alleged in the affidavit were within the personal knowledge of deponent and that the affidavit was made to induce Ruben Venetsky to accept a deed for title to said premises and to pay the agreed consideration therefor.

It further appeared that settlement under the contract was made March 9, 1953 and that the plaintiff Ruben Venetsky at that time paid the balance of the consideration price to Joseph William Gottsleben, the total payments, after necessary adjustments, amounting in the aggregate to $5,079.11.

Subsequent to the closing of title on March 9, 1953, the purchaser Venetsky ascertained that on October 1, 1952 final judgment was entered in the Superior Court in favor of defendant West Essex Building Supply Co., Inc., against Fred Gottsleben and Mildred G. Gottsleben, his wife' in the amount of $1,394.91 plus costs. March 9, 1953 execution on said judgment was issued to the sheriff of Essex County pursuant to which the sheriff levied upon all of the right, title and interest of Fred Gottsleben and Mildred G. Gottsleben, his wife, in and to the premises in question, the levy having been made March 13, 1953.

May 26, 1953--The right, title and interest of Fred and Mildred G. Gottsleben in and to the premises in question were sold by the sheriff and purchased by the defendant.

On May 23, 1953 this suit was filed in the clerk's office of the Superior Court and in the complaint plaintiffs demand judgment that they hold the lands and premises in question free and clear of the lien of the aforesaid judgment against Fred and Mildred G. Gottsleben; that the aforesaid levy be set aside; and that the defendant be enjoined from proceeding with the sale of the premises. In short, plaintiff is demanding a declaratory judgment. Defendant's answer asserts that its judgment did constitute a first lien upon the right, title and interest of the defendant Fred Gottsleben; that plaintiff's acquisition of title was subject to the lien of defendant's judgment and, in effect, joins in the demand for a declaratory judgment.

At the trial of this matter before the court without a jury, a birth certificate was produced and revealed that 'Clarence Fred Gottsleben,' son of Henry and Eliza Gottsleben, was born at Newark on August 17, 1892. The proofs at the hearing also disclosed that Benjamin Gittleman, Esquire, an attorney at law, who had had upwards of 25 years experience in searching titles to real estate, had searched the title to the premises in question prior to making settlement on March 9, 1953; had secured county and tax searches and had likewise secured searches in the United States District and New Jersey Superior Courts against all of the names appearing in the chain of title for 20 years past, including the name 'Clarence F. Gottsleben,' but that no judgments or other liens were disclosed thereby. The certificate annexed to the search of the records in the United States District Court and New Jersey Superior Court bears date March 5, 1953.

On behalf of the defendant it was disclosed at the hearing that Clarence Fred Gottsleben was listed in the Madison telephone directory as 'C. F. Gottsleben,' residing on Noe Avenue in Chatham Township; that on August 14, 1952 he opened an account in the First National Bank of Madison in the name of 'Mr. Fred Gottsleben, Noe Avenue, Chatham Township,' and that he was known at the bank only by the name Fred Gottsleben. And it also appeared that since October 1949 he had been known to Theodore A. Hansen, a general contractor, as 'Fred Gottsleben,' who had introduced him to the defendant West Essex Building Supply Co., Inc., by that name. And it further appears that Fred Gottsleben purchased building material at the defendant's yard for which he gave a promissory note signed by himself and wife which formed the basis of the judgment secured by the defendant against him.

The record before us does not disclose that plaintiff Ruben Venetsky, or his attorney Benjamin Gittleman, who made and secured the title searches, had any prior acquaintance with the Gottsleben family.

On this state of proofs the trial court found that plaintiffs took a calculated risk in accepting a conveyance of title so soon after the death of Eliza Gottsleben; that plaintiff had failed to sustain the burden of proof, and that judgment should be entered in favor of the defendant and the complaint dismissed.

By statute judgments are made a lien upon real estate from the date of the entry of such judgment on the records of the court, N.J.S. 2A:16--1, N.J.S.A., and where the judgment debtor acquires title subsequent to the entry of the...