Moller v. Paulivico ( 1925 )

McAvoy, J.:

The suit here was brought by the administratrix of the estate of Harold G. Moller, deceased, to recover the sum of $3,599, which is claimed to be the unpaid balance of the purchase price of certain real estate situated in Bayville, Ocean county, N. J. The decedent conveyed these premises by bargain and sale deed to his sister, Maud E. W. Moller Paulivico on the 8th of November, 1915, the consideration being recited as one dollar and other good and valuable considerations. There was no dispute that the reasonable value of the premises was three thousand six hundred dollars and that defendant paid nothing to her brother on account of the purchase price, except one dollar as nominal consideration for the transfer.

Plaintiff, as administratrix, demands in her complaint the reasonable value of the premises upon defendant’s alleged implied promise to pay therefor, and the rule doubtless is that since nothing was paid for the premises, there was an implied promise upon the part of the person receiving the bargain and sale deed to make a reasonable payment in accordance with the value of the land. Since there was a bargain and sale of the premises recited in the deed to be for a good and valuable consideration, a presumption arises that the consideration was to be paid the grantor, in addition to the one dollar therein mentioned. To overcome this presumption and establish that the conveyance was limited to merely a good consideration, such as love and affection, there must be very clear and convincing proof such as would satisfy the court that the intent of the now deceased grantor was a transfer of the property without an exchange of anything of value.

Defendant herself indicates in a letter she wrote to the plaintiff that she did not receive the premises as a gift from her brother, but had bought the same. The letter reads as follows:

“ Mrs. Emily Rogees Mollee: “ Dec' lsí’ 1915‘

“ Deae Madam.— As I bought from my brother, Mr. Harold Moller, before his death the farm, and everything on it and in it, with the exception of what is yours, I wish to say that you enter the premises at your own risk without my consent. On December the 10th I wish you would come and get your things as I will be there. Mr. Ward and all others that are there now are employed

me" “ Very truly yours,

“ MAUD MOLLER,

“ 601 West 168th St.

“ P. S. I have the deed which was recorded in Tom’s River.”

This letter portrays defendant’s own concept of the nature of the transaction as one of sale and not of gift.

The recital in the deed of acknowledgment of receipt of the consideration does not prevent proof that the consideration did not, in fact, pass, and here the defendant herself in her testimony admits that she paid nothing for the property other than the one dollar recited as paid in the deed. Ñor could defendant have proven by her own testimony that the consideration for the grant of the land to her by deed was love and affection. Her evidence in this regard would have been that of an interested witness concerning a personal transaction with a decedent against an administratrix of such deceased person which testimony is prohibited under section 829 of the Code of Civil Procedure, now section 347 of the Civil Practice Act. Such evidence would also be objectionable because it would vary the precise terms of a written instrument which recited a valuable consideration as the basis of the transfer. It is also in proof that at the time of decedent’s death the property actually on hand belonging to his estate was less than the amount of the decedent’s debts. Decedent died on November 23, 1915, and the deed was given on November 8, 1915. Acquiring this property, therefore, for a consideration of love and affection, when decedent’s debts were greater than decedent’s assets, would not be in accord with the public policy of the State to prevent such transfer as against the rights of creditors and its effect would be nullified in a suit for that purpose by any creditor interested. It appears from the nature of the evidence and the inferences to be derived from the instruments and the nature of the transaction that a promise to pay for the land a reasonable sum based upon its value should have been implied, and, therefore, the judgment should be reversed, with costs, and judgment rendered for the. plaintiff for $3,599, with interest thereon from the 8th day of November, 1915, the date of the deed, and with costs.

Dowling, Martin and Burr, JJ., concur; Merrell, J., dissents.

Judgment reversed, with costs, and judgment directed in favor of plaintiff for $3,599, with interest thereon from November 8, 1915, and with costs.