MARY ELIZABETH WHITE v. ELIZABETH ANN WHITE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6359-05T56359-05T5

MARY ELIZABETH WHITE,

Plaintiff-Appellant,

v.

ELIZABETH ANN WHITE,

Defendant-Respondent.

________________________________________________________________

 

Submitted September 10, 2007 - Decided September 17, 2007

Before Judges Lisa and Lihotz.

On appeal from the Superior Court of New Jersey, Union County, Chancery Division, C-92-06.

Mary Elizabeth White, appellant pro se.

Elizabeth Ann White, respondent pro se.

PER CURIAM

Plaintiff, Mary Elizabeth White, brought this action in the Chancery Division, General Equity Part, against her mother, defendant, Elizabeth Ann White, seeking an order to compel her mother to convey to plaintiff title to real property in Rahway. The property consists of a house purchased by defendant in late 1990, in which plaintiff has continuously resided since that time. Defendant has never lived in the house, but she has paid all real estate taxes due on the house. At the time of this litigation, the annual real estate taxes were about $6,000. Plaintiff's only source of income was her social security disability income of about $10,000 per year.

In her complaint, plaintiff alleged that on the weekend of February 14, 2003, defendant promised to deed the house over to her when defendant paid off the existing mortgage or when defendant died, whichever came first. The mortgage was apparently paid off in October 2005, but defendant declined to convey the property to her daughter.

On July 12, 2006, the return date of plaintiff's order to show cause, Judge Lyons conducted an evidentiary hearing, at which both parties testified. Defendant acknowledged that she promised her daughter she would deed the house to her when the mortgage was paid off or leave it to her upon her death, but she insisted that her promise contained an important condition. Defendant explained it this way:

I made that promise with the caveat that she could pay the taxes. I said she would get the house when she showed me that she could afford to pay the taxes. I did make those other statements. But, I also added when she could show me that she could pay the taxes.

. . . .

My fear is that she's gonna lose the house because she won't be able to pay the taxes.

. . . .

And then she won't have anything.

The judge credited defendant's testimony in this regard. At the conclusion of the hearing, the judge set forth his findings and legal analysis, concluding that no enforceable promise had been established. He accordingly dismissed the complaint. On July 31, 2006, the judge set forth in a letter opinion a summary of his findings and conclusions as follows:

The court found the following as facts. Plaintiff paid no consideration for the promise. Neither did Plaintiff show any detrimental reliance on the promise. Nor was Plaintiff induced by Defendant's promise to make valuable improvements of a permanent nature to the Property. In fact, Defendant expressed concern that Plaintiff had no means to maintain this or any other property.

A transaction that is a gift pure and simple is enforceable in equity in certain circumstances. National Newark and Essex Banking Company of Newark v. Work, 108 N.J. Eq. 76, 78 (Chan. 1931); Roberts-Horsfield v. Gedicks, 94 N.J. Eq. 82, 84 (Chan. 1922)[, aff'd, 96 N.J. Eq. 384 (E. & A. 1924)]. A parol gift of land is generally invalid. Id. However, when the gift is accompanied by possession, and the donee has been induced by the promise of the gift to make valuable improvements of a permanent nature, equity will enforce it. Id. This principle is well settled. Id. The court found therefore that the alleged parol gift of land was unenforceable.

The judge rejected plaintiff's contention that because she lived in the property for fifteen years and took care of the property during that time she provided adequate consideration to render her mother's promise enforceable. However, the promise expressed by defendant did not occur until February 2003, more than twelve years after plaintiff began living in the home, and there is no evidence that plaintiff made any capital improvements to the home or took any other action in reliance upon any expectation of a conveyance of the property to her. She paid no rent during all of these years and her mother paid the real estate taxes.

From our review of the record, we are satisfied that Judge Lyons' factual findings are amply supported by substantial credible evidence, and we have no occasion to disturb them. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Further, the judge correctly applied the law, concluding that no basis was established to support enforcement of a statement by defendant that she intended to convey the property to plaintiff.

 
Affirmed.

Defendant's sworn testimony was taken, without objection, telephonically.

(continued)

(continued)

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A-6359-05T5

September 17, 2007