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Bennerson v. Joseph

decided: July 3, 1978.



Before Gibbons, Garth and Higginbotham, Circuit Judges.

Author: Gibbons


Antionette Bennerson, the plaintiff-appellant, is a seventy-six year old widow. She is illiterate, having received virtually no formal education. When she was an adult, she learned to sign her own name in a labored manner. Prior to 1967 she was married to Eugene Bennerson, and they owned a substantial tract of land at Estate Whim, St. Croix, Virgin Islands. While Eugene Bennerson was still alive, the tract was subdivided, and part of it, Plot 96, was conveyed, subject to a life interest, to a tenancy in common in Antoinette Bennerson and four Bennerson children. The remainder of the tract, which included Plots 63, 95, and 107, passed to Mrs. Bennerson's sole ownership upon her husband's death. These plots were further subdivided, and purported conveyances from each plot were recorded from time to time. In 1973 Mrs. Bennerson approached an attorney to complain that the conveyances had been made without her knowledge or authority and that she had not received the proceeds of sale. Shortly thereafter, in February, 1974, the opening act in this legal drama commenced when a complaint was filed, naming Henry Joseph as defendant and seeking (1) an accounting of monies received from the sale of lots in Plot 63, (2) a declaration that conveyances out of Plots 95 and 107 were void, and (3) such other equitable relief as might be appropriate.

Henry Joseph, who now works as a prison guard, lived in the Bennerson household in Frederiksted as a child although his mother and father lived in St. Croix. Joseph left St. Croix in 1948 but returned in 1965 when his mother died. He was then about 35 years old. He moved in with Eugene and Antoinette Bennerson, and continued to reside there until the time of his second marriage in May, 1968. Joseph was served with the original summons and complaint on February 27, 1974, but defaulted. A motion for the entry of a default was granted by the district court on July 2, 1974, and on July 30, 1974, the court held a hearing on the entry of a default judgment. Although testimony was presented in this hearing, no default judgment was entered. The testimony tended to establish that numerous conveyances had been made out of Plots 63, 95, and 107 by deeds bearing a signature "Antoinette Bennerson," but that the deeds were not signed by Mrs. Bennerson or by the witnesses who purportedly witnessed her signature. The court pointed out that full relief would require joining the grantees.

On November 10, 1975, an amended complaint was filed adding as defendants three grantees out of Plot 63,*fn1 nine grantees of eight lots out of Plot 107,*fn2 and eight grantees of seven lots out of Plot 95.*fn3 Thereafter Louis Soto, a subgrantee of Lot 95-N from Jose and Carmen Figueroa, was added by amendment. Of these twenty-one added defendants the record discloses service of process directly or by substituted service on fifteen. Of those for whom no return of service appears of record an appearance and answer was filed on behalf of three. No return of service or appearance appears of record for two.*fn4 Of those served no appearance or answer has been filed on behalf of nine.*fn5 A motion for the entry of a default judgment against the defaulting defendants was filed on Mrs. Bennerson's behalf on March 29, 1977, but has never been acted upon. Henry Joseph's default has never been cured. The amended complaint thus questioned the validity of conveyances to Henry Joseph (all of Plot 63 and Lots 95-D and 95-E), of three conveyances out of Plot 63 as to which no grantee has appeared, of eight conveyances out of Plot 107 as to which only four grantees have appeared, and of six conveyances out of Lot 95 as to which grantees of three have appeared.

On March 4, 1977, First Pennsylvania Bank, N.A., filed a motion to intervene as a defendant because it was the mortgagee of a mortgage issued by Henry Joseph and his wife on Lots 95-D and 95-E and on Lots 63-A through 63-Q of Plot 63, securing an indebtedness of $58,500. That motion was granted on March 3, 1977. Those defendants who appeared, including the intervenor mortgagee, put in issue Antionette Bennerson's denial of the genuineness of her signature. They also pleaded, alternatively, that Joseph had acted on her behalf with her authority and had paid over to her the proceeds of sale. One defendant, Arnold Mathew, pleaded that a prior action by him to quiet title was res judicata against the plaintiff.

Meanwhile, acting ex parte and sua sponte, the district court on January 28, 1977, entered an order referring the case to a master.*fn6 When the case came on for a hearing before the master, Antionette Bennerson put in evidence three deeds (Exhibits P. 1, P. 2, & P. 3) executed prior to the time of her husband's death, which she said bore her genuine signature. One of these, Exhibit P. 3, dated March 9, 1965, was acknowledged before a notary public named Amelia Peterson. She also put in evidence the following additional deeds in which her name appears as grantor, as to each of which she denied her signature:

Date Exhibit Grantee Witnesses Notary Location


May 4, P.16 Henry A. Rosalia Lenhardt Franz E. Lots 95-D,

1967 Joseph Louise Williams Delemos 95-E

May 4, P.23 Elsie Henry A. Joseph Franz R. Lots 95-L,

1967 Jeffers Rosalia Lenhardt Delemos 95-I

Aug. 12, P. 21 Thelma Henry Joseph Amelia P. Lot 95-P

1967 Roberts Eleanor Phillips Gill*fn7

Nov. 27, P. 20 Adams Henry A. Joseph Franz R. Lot 95-M

1967 Engineer- Hubert Hendricks Delemos

ing &

Constr. Co.

March 8, P. 4 Henry Rosalia Lenhardt Amelia P. Plot 63

1968 Joseph Victor Donohue Gill*fn7

Oct. 29, P. 19 Jose & Henry A. Joseph Amelia P. Lot 95-N

1968 Carmen Eleanor A. Gill*fn7

Figueroa Joseph*fn8

Oct. 1, P. 17 Olric Henry Joseph Amelia P. Lot 95-H

1969 Forde Eleanor A. Gill*fn7


Oct. 1, P. 18 Manuel Henry Joseph ...

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