93 N.J. Eq. 33 | New York Court of Chancery | 1921
1. It is clear that the understanding of the parties as to when the purchase-money mortgage referred to in' the contract should be made payable cannot be established by parol proofs. Schwartzman v. Creveling, 85 N. J. Eq. 402.
2. I am convinced that the evidence does not justify an affirmative finding that the contract was acknowledged by Mrs. Smith. Mrs. Smith, probably, understood the transaction fully at the time she signed the agreement and the notary public was no doubt fully satisfied that she understood it. But there is no evidence either by a certificate of acknowledgment or otherwise that she in fact signed or acknowledged that she signed as her free or voluntary act. This specific inquiry by an acknowledging officer is all important. Formerly, the inquiry was required to' be made in the absence of the husband and with specific inquiry as to possible coercive influence of the husband; that requirement is now dispensed with, but the inquiry whether a married woman executes tire instrument voluntarily is now quite as important as it ever has been. The mere circumstance that the notary annexed no certificate of acknowledgment to the agreement strongly indicates that no acknowledgment was in fact taken. The present act (P. L. 1918 p. 119), like the act it amends, provides that "no estate or interest of a feme covert in any lands, tenements or hereditaments, lying and being in this state, shall hereafter pass by her deed or conveyance, without a previous acknowledgment.” The effect of that provision has been long determined to be to render impossible the specific enforcement of an unacknowledged contract of a feme covert for the sale of land. Schwarz v. Regan, 64. N. J. Eq. 139; Schwabinger v. Saxon (Court of Chancery), 110 Atl. Rep. 15.
3. I see no obstacle to partial performance with compensation arising from the mere circumstance that a. conveyance of the
“the court will not apply the rule already stated except in cases of real necessity, and prefers to grant compensation even when its measure cannot be exact, and the estimate must be rather approximate than certain.”
In this state it is a common practice in cases in which one who owns the fee lias contracted to sell an unencumbered title, and has no substantial defence except an outstanding' ¿lower right in one against whom no decree can be made, to decree specific performance by the owner of the fee with abatement of the purchase price to the amount of the value of the dower interest as ascer-. tained by our table of mortality. In the present case, tire title is in the two defendants, who axe husband and wife, as tenants by the entirety. The objection now made to a decree for specific performance by the husband with abatement from the purchase price of the value of the wife.’s interest is that the value of the interest of the wife cannot be ascertained with reasonable accuracy. The husband has contracted to sell and should comply with his contract if it can be enforced against him; if the only defence available to him should be found to- be the'objection now made, I am unable to regard it as substantial. By our tables of mortality the years of expectancy of life of both parties defendant can be ascertained, and the proportionate value of their respective interests will be disclosed by their respective years of expectancy.' Thus, if the expectancy of one should be ascertained by the master to be ten years and the other fifteen years, the ten years’ expectanc}r would be valued at ten twenty-fifths of the purchase price, and the fifteen years’ expectancy would be valued at fifteen twenty-fifths of the purchase price.
