Franklin Nat. Bank, Jersey City, v. Freile

Full title: THE FRANKLIN NATIONAL BANK OF JERSEY CITY, appellant, v. MARGARET S…

Court: Court of Errors and Appeals

Date published: Jan 10, 1935

176 A. 167 (N.J. 1935)

176 A. 167

Opinion

Submitted October 26th, 1934.

Decided January 10th, 1935.

Franklin National Bank v. Freile, 116 N.J. Eq. 278, affirmed and criticised.

On appeal from a decree advised by Vice-Chancellor Fielder, whose opinion is reported in 116 N.J. Eq. 278.

Mr. Lewis G. Hansen, for the appellant.

Mr. Samuel M. Friedman and Mr. John J. Fallon, for the respondent.

PER CURIAM.

This case was submitted on briefs: and as stated in the brief for appellant, "the only question before the court on this appeal is: Were the ten mortgages held by James H. Freile and Margaret A. Freile, his wife, or the survivor of either, held by them as joint tenants or not?"

We concur in the finding of the learned vice-chancellor on this question, and for the reasons stated by him in that regard. The other parts of the opinion below are not challenged on this appeal, and therefore do not strictly require comment, but we deem it well to note that the rule laid down in the first syllabus as prepared by the vice-chancellor is much broader than required by the facts of the case, and not supported to that extent by the cases cited, both of which involved, as in the present case, transfers of property to a near relative. A similar situation obtained in Coleman v. Graff, 94 N.J. Eq. 223, and in Babirecki v. Virgil, 97 N.J. Eq. 315, where we said (at p. 319): "The burden of proving, when attacked as fraudulent, the consideration of a deed, where no consideration was paid at the time of the conveyance, is upon the grantee."

For the reasons given by the vice-chancellor touching the particular matter under appeal, the decree will be affirmed.

For affirmance — THE CHIEF-JUSTICE, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, JJ. 12.

For reversal — None.