78 N.J. Eq. 270 | N.J. | 1911
Lead Opinion
The opinion of the court was delivered by
We are unable to sustain the order in this case upon the theory that the complainant is entitled to specific performance of the contract as set forth in the bill, or upon the ground of an equitable lien, upon which it was sustained by the vice-chancellor. We think, however, that the bill charges facts which justify the order. The agreement is in the nature of a cropping
The difficulty in this case arises out of the fact that Hinchman has died and can no longer perform his part of the contract. If the case were a partnership it would be the duty of Braddock, as surviving partner, to wind up its affairs, and this ordinarily ought to be done at once or with reasonable speed. We have, however, held in Wild v. Davenport, 48 N. J. Law (19 Vr.) 129 (at p. 137), that “a stipulation in partnership articles
The remaining question is 'whether this agreement can be enforced against the present appellant. This follows almost as a matter of course our conclusion that the property was to be continued in the joint adventure after Hinchman’s death. ■ His heirs and devisees held the land in trust for the purposes of the agreement, and the appellant, having acquired his title with notice of the agreement, is subject to the like trust.
We think, therefore, that the objection of the appellant that the case is not a proper case for the jurisdiction of equity fails, and that the jurisdiction may be sustained either upon the theory of an equitable title or upon the theory of a joint adventure, or upon the theory of a trust, or upon all three. In any event, the alleged lack of equity is not so clear that a demurrer to the bill should prevail.
The order is therefore affirmed, with costs.
Concurrence Opinion
(concurring).
I think that the order of the court of chancery should be sustained upon the ground upon which such order was put by the court below, viz., that of "equitable lien.”
The agreement set forth in the bill is of the sort of which Mr. Pomeroy says:
“In a large class of executory contracts, express or implied, which the law regards as creating no property right, nor interest analogous to property, but only a mere personal right or obligation, equity recognizes, in addition to the personal obligation, a peculiar right over the thing concerning which the contract deals, which it calls a ‘lien’ and which, though not property, is analogous to property, and by means of which the plaintiff is enabled to follow the identical thing, and to enforce the defendant’s obligation by a remedy which operates directly on that thing. The theory of equitable liens has its ultimate foundation, therefore, in contracts, express or implied, which either deal with or in some manner relate to specific property such as a tract of land * * * and the like. It is necessary to divest one’s self of the purely legal notion concerning the effect of such contracts, and to recognize the fact that equity regards them as creating a charge upon or hypothecation of the specific thing, by means of which the personal obligation arising from the agreement may be more effectually enforced than by a mere pecuniary recovery at law.” 8 Pom. Eq. Jur. § 1234.
From the illustrations given in the text and the cases cited in the notes, the pertinent doctrine to be deduced may be stated in this form: An executory agreement in writing, whereby a party so'contracts that land of his, therein particularized, is clearly appropriated to the performance of the obligation of its owner created by such contract, gives to the party, with whom he has so contracted, an equitable lien upon the land itself upon which equity may administer a remedy where a mere pecuniary recovery would be inept or inadequate.
This rule applies where, by the owner’s contract, the use of his land is essential to a joint undertaking in which by such contract he has engaged, and to which he has therein agreed that the use of his land shall be devoted. Whether or not in such case, more especially in that of an alienee of the land with notice, the remedy will be limited to the injunctive power of the court need not be now decided; upon demurrer for lack of equity
Upon the ground of equitable cognizance stated, supplemented by this rule of the law of notice, the bill in the present case is good upon demurrer. I therefore vote to affirm the order of the court of chancery.