Cornell v. AndrusCornell v. Andrus
The opinion of the court was delivered by
The bill in this case was filed by the appellants for a specific performance by the respondent of an agreement in writing, dated September 17th, 1881, for the purchase and sale of a certain plot or parcel of land at Constable Point, in the city of Bayonne, county of Hudson, and state of New Jersey, particularly described therein, for the price of $65,000. A deed was prepared and .tendered November 1st, 1881, according to the terms of the agreement, but the respondent refused to accept the same, and pay and secure'the purchase-money, because he was advised that the title of the appellants was not a legal title in fee simple.
The defect insisted on is that the appellants’ title to the land was derived under a mortgаge given by Thomas E. Davis and Anne, his wife, to “ Joseph D. Beers, the president of the North American Trust and Banking Company,” dated November 14th, 1838, to secure twelve bonds, to several obligors, amounting to the sum
The defendant, in his answer, admits the material stating parts of the bill, but insists that the mortgage made by Thomas E. Davis and wife to Joseph D. Beers, the president of said The North American Trust and Banking Company, conveyed a life estate only to said Beers, and that, therefore, the title which passed by the subsequent decree of foreclosure and sale, and the sale founded upon said mortgage, was a life-estate only in said lands, and that the complainants have no other or greater estate in said lands.
The complainants charge in their bill of complaint that by an act of the legislature of the state of New York, entitled “ An act to authorize the business of banking,” and especially by the twenty-fourth section, of said act, Joseph D. Beers, president of the North American Trust and Banking Co., was at the date of the аbove-named mortgage, under which they claim title, a corporation sole of the state of New York, and by the law of the state оf New Jersey, took a fee simple by said mortgage without any further limitation of estate than is contained in the said mortgage to his successors and assigns. The case was heard before the chancellor, on the bill and answer, with no evidence but that of the lаw of New York authorizing the business of banking; and a specific performance of the agreement was denied because there was no certainty that the defendant would not be subject hereafter to litigation to test before other tribunals, in direct prоceedings, the very question which the court was asked to decide in this suit; and because it could not be certain that he would not bе embarrassed in disposing of the property to purchasers by the apparent defect of estate which he urges in his defence.
The only statement of title made in the bill is that the mortgage was assigned in writing under seal, December 15th, 1840, by Thomas Talmage, president of the North American Trust and Banking Co., the successor in office of Joseph D. Beers, to Thomas G. Talmage, Henry Yates and William Curtis Nоyes,
“It is unnecessary to state said decree, foreclosure or said conveyance, inasmuch as there is no dispute between your orators and said Andrus as to said title, except upon the point stated abovе.”
There is no doubt that if these proceedings were in ordinary form, and' all subsequent purchasers and encumbrancers were madе parties to the bill, the title under the mortgage foreclosed would be perfected so that the purchaser would acquirе the title of the mortgagee and also the title of the mortgagor as it stood at the time of the making of the mortgage, acсording to its terms. It is also manifest that in these proceedings the title of the mortgagee passed through the court, and may have bеen settled in such form that this court would feel it right to agree with the adjudication.
It is certainly important that this court, in deciding a question оf such great importance to the many persons who have become interested in this title, not only by the conveyance оf the lands involved in this controversy, but of other lands under the same title, should have before it a distinct statement and proof of the сomplainants’ title as it may be found in the proceedings for foreclosure and the decree, sale and conveyanсe thereunder. This matter has -not had, in the opinion of the respective counsel of the parties, the importance whiсh has impressed itself on us, nor was the attention of the court below called particularly to it. We are not willing to cast doubt оn this title to the detriment of many persons who are largely interested under it, or, on the other hand, to compel the defendant to complete this large purchase without having the opportunity afforded us of examining the complainants’ title. In order that thе judgment of this court may have the influence which it ought to have, and would doubtless have in quieting this title, if a specific performancе should
Without, therefore, intimating any opinion whethеr this title is doubtful or sufficiently certain to compel a specific performance of this agreement, it will be ordered, for want of sufficient proof of complainants’ title, that the decree denying the complainants’ relief on the bill and proofs bе affirmed, without costs, and without prejudice to filing a new bill, or to an application to amend.