Corbett v. Carley

New Jersey Superior Court App Division

Corbett v. Carley

67 A.2d 880, 4 N.J. Super. 481, 1949 N.J. Super. LEXIS 836

CourtNew Jersey Superior Court Appellate Division

DecidedAugust 8, 1949

StatusPublished

This text of 67 A.2d 880 (Corbett v. Carley) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Corbett v. Carley, 67 A.2d 880, 4 N.J. Super. 481, 1949 N.J. Super. LEXIS 836 (N.J. Ct. App. 1949).

Pincite

Opinion

The facts, in brief, as set forth in the complaint, are as follows:

Plaintiff was a minor on April 1, 1945, at which time he advanced moneys for the purchase of a parcel of real estate *Page 483 in the City of Newark by his mother and step-father. Title was taken by them as tenants by the entirety.

The complaint sets forth two causes of action. It alleges (1) that there was an express oral agreement to convey to him a three-quarter interest in the realty when he reached his majority; and (2) a demand for partition of said realty.

After hearing, the second cause of action was dismissed. A judgment was entered, the gist of which was that the plaintiff was entitled to an equitable lien on the premises to the extent of moneys found to have been advanced by him.

The complaint was not amended, either during the trial or at the conclusion of the trial, to conform to the proofs. It is evident, therefore, that the judgment is founded upon a theory not appearing as an issue in the pleadings. It is as well apparent that the defendant might have adduced additional and different testimony or have interrogated the plaintiff and his witnesses on other subjects than he did had he been apprised that the plaintiff was seeking to impress a lien upon the premises rather than seeking an interest in the fee simple title.

The judgment is, therefore, reversed, and the case remanded to the court below so that the plaintiff may amend his complaint seeking the relief granted. The defendant may file whatever answering pleading he may deem necessary, and a further trial on such newly framed issue be had. *Page 484

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The facts, in brief, as set forth in the complaint, are as follows:

Plaintiff was a minor on April 1, 1945, at which time he advanced moneys for the purchase of a parcel of real estate *Page 483 in the City of Newark by his mother and step-father. Title was taken by them as tenants by the entirety.

The complaint sets forth two causes of action. It alleges (1) that there was an express oral agreement to convey to him a three-quarter interest in the realty when he reached his majority; and (2) a demand for partition of said realty.

After hearing, the second cause of action was dismissed. A judgment was entered, the gist of which was that the plaintiff was entitled to an equitable lien on the premises to the extent of moneys found to have been advanced by him.

The complaint was not amended, either during the trial or at the conclusion of the trial, to conform to the proofs. It is evident, therefore, that the judgment is founded upon a theory not appearing as an issue in the pleadings. It is as well apparent that the defendant might have adduced additional and different testimony or have interrogated the plaintiff and his witnesses on other subjects than he did had he been apprised that the plaintiff was seeking to impress a lien upon the premises rather than seeking an interest in the fee simple title.

The judgment is, therefore, reversed, and the case remanded to the court below so that the plaintiff may amend his complaint seeking the relief granted. The defendant may file whatever answering pleading he may deem necessary, and a further trial on such newly framed issue be had. *Page 484

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Bluebook (online)

67 A.2d 880, 4 N.J. Super. 481, 1949 N.J. Super. LEXIS 836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/corbett-v-carley-njsuperctappdiv-1949.