108 N.J. Eq. 435 | N.J. Ct. of Ch. | 1931
Complainant's testator contracted to sell certain lands to the defendant for $12,000, but at the time of his death the contract had not been performed. By his will testator devised the premises to "Mrs. William Costello," who was then, and is now, in possession and claims title. She is not a party to this suit. The legal title to the premises is in her by virtue of the provisions of the will, subject, of course, to the equitable rights of the parties to this suit. Obviously, possession cannot be delivered in accordance with the terms of the contract as Mrs. Costello refuses to vacate the premises, and has given notice of her intention to stand on her rights, whatever they may be; in fact, she has already filed a bill in this court against the complainant to establish her alleged rights in the premises. Ordinarily delivery of possession is essential to the transfer of a good title, unless the agreement provides otherwise. Here, the agreement expressly provides for delivery of possession upon delivery of the deed. This the vendor cannot do, and as the vendor is unable to deliver such possession with title, the vendee may refuse to perform. Dobbs v. Norcross, *437
It also seems plain that the complainant is not in a position to perform and therefore cannot require performance by the defendant. While the will gives the executor power of sale of real property, the premises here involved are expressly excepted from such power and it cannot deliver good title because the legal title is vested in Mrs. Costello. In equity, every party interested in sustaining or defeating the object of the suit should be a party and be heard before decree. 2 Story Eq. Jur.
§ 1526. As Mrs. Costello is not a party here the court has no jurisdiction to direct a conveyance by her and her interest in the property would not be barred by a decree in this suit.Coles v. Feeney,