81 N.J. Eq. 168 | N.J. | 1913
The opinion of the court was delivered by
The complainant does not seek rescission but relies upon the contention that the deed is not in accordance with the written agreement. The elaborate description in the decree is itself unlike anything in the agreement, and the decree can only be sustained upon the theory that the agreement was, if properly construed, to convey a building with the exterior lines set forth in the decree, and not merely to convey a lot particularly described with the dwelling thereon. If the complainant’s contention is correct, there is a latent ambiguity in the agreement; it describes, first, a lot twenty-five feet in front and rear, and secondly, a building twenty-five and four-tenths feet in front on a lot of' that frontage, and a width of twenty-five and fifty hundredths feet in the rear. In view of that ambiguity, we could not, after litigation has arisen, say that the practical construction by the parties when the defendant made the deed and the complainant made the mortgage was erroneous. There was no mutual mistake since each construction was equally open; the defendant might well think he was agreeing to sell only the lot particularly described, and the complainant that he was agreeing to buy the building by its exterior lines regardless of the land on which it stood. Their minds upon that theory never met. The complainant might indeed be entitled to rescind for the mistake, but that he does not ask, and has not put himself in shape to ask, by the necessary offer to restore the property to the defendant. In view of the ambiguity and the construction by the .parties, the complainant fails to establish his case for reformation by that clear and convincing proof and that unex
The complainant in this case took title by his deed to a complete house, although he acquired also an easement of support by the defendant’s wall; but this easement of support does not differ in kind from the ordinary easement of support of a man’s land in its natural state by his neighbor’s land. That houses built in this manner are separate buildings sufficiently appears
The decree must be reversed, to the end that the bill be dismissed. The defendant is entitled to costs in both courts.
For affirmance — PTone.
For reversal. — The Chtee-Jtjstice' Garrison, Swayze, Tkencitard, Bergen, Minturn, Kalisck, Bogert, YbedenBURGH, CoNGDON, WHITE, TREACY — IS.