86 N.J. Eq. 411 | N.J. | 1916
The opinion of the court was delivered by
The owner of a tract of land devised it to his daughter for life with remainder to the heirs of her body living at her death, and in default of such heirs over to other persons. The daughter
Against this the defendants were charged with the mortgage of $2,000, as though limited to a life interest; the rental value of the property, and $200 paid on account of the purchase price when the contract was signed, leaving a balance of $39.88. From this decree defendants appeal.
The contract which this decree requires be specifically performed is materially variant from the one entered into by the parties. The estate is reduced from a fee-simple to one for life, subject to a mortgage given to cover the fee-simple, without affording the mortgagee a hearing, and the vendor is required to abate the contract price upon the theory that he has only a life estate from his vendor who conveyed to him a fee-simple with full covenants subject to the mortgage. If it should be here-. after held, in a direct proceeding by the remaindermen to recover the land after the termination of the life estate, that the tax sale was regular and passed the fee to_ Dieffenbach, then the complainant would, under this decree, have the entire estate, and the defendants be deprived of their property, without compensation. For, in an action at law by defendants against their grantor for a breach of the covenant in his deed, would their 'grantor be estopped by this deci'ee from showing the regularity of the tax sale and that he had a perfect title when he conveyed.
While relief by specific performance is said to rest on the sound discretion of a court of equity, still, if the contract be certain, for a fair consideration, and the party seeking enforcement is not in default, performance will be decreed.
Mr. Justice Garrison, speaking for this court in Page v. Martin, 46 N. J. Eq. 585, said: “That relief rests not upon what the court must do, but rather what, in view of all the circumstances, it ought to do. * * * In every case of this character the court is chiefly concerned with the equities of the parties before it.” In the case under review, the defendant Sullivan, supposing in good faith that he had a title in fee-simple, subject
The doubt concerning the defendant’s title might be sufficient to refuse him relief if he were seeking performance, for his vendee is not bound to take a doubtful or unmarketable title, nor to buy a law suit, and he would only lose the benefit of his bargain by the refusal of performance by the vendee, but, in the present case, the coux't cannot do equity between all the parties, which is the matter with which the court is chiefly concerned in giving relief in cases of this character. It cannot estop the complainant from inaintaining the perfection of the tax title if assailed by the remaindermen, nor can it protect the defendant from a like condition should he proceed against his grantor for damages for breach of his covenant, neither can it restrain the mortgagee from maintaining that the mortgage encumbers the entire estate and that it is not limited to a life estate. The wrong that the defendant suffers is that by this substituted contract he is required to convey his property for a price fixed with reference to an estate which may be hereafter-, in a direct proceeding between proper parties, established to be greater than that upon which it is based, thus allowing complainaxxt to acquire an estate for which he has paid no compensation to the injury of the defendants. We ax*e of opinion that under the circumstances
There is nothing in this case which shows that the complainant requires this property for any special or unusual reason, which would put this case out of the ordinary class in which this special relief is sought, or that his legal remedy is insufficient.
The result which we have reached makes it unnecessary to consider the question, so earnestly argued by the appellant, whether the complainant can have specific performance with compensation when he knows, before he files his bill, of the alleged imperfections in title, and which, if true, prevents vendor from performance, and no opinion is expressed on this question.
The bill should be dismissed, and for that purpose the decree reversed.
For affirmance — Minturn, Kalisch — 2.
For reversal — The Chiee-Justice, Garrison, Swayze, Trenchard, Parker, Bergen, Black, White, Heppeni-ieimer, Williams, Taylor, Gardner — 12.