106 N.J. Eq. 485 | N.J. Ct. of Ch. | 1930
After affirmance of the final decree in this cause by the court of errors and appeals (
An inspection of the briefs submitted in the court of errors and appeals on behalf of both complainants and defendants indicates that all questions which are now argued in this proceeding were argued in the court of errors and appeals and considered by that court, and this alone should warrant the dismissal of the present petition. Notwithstanding that fact, however, I have considered the evidence submitted, and, while I have no doubt that in a proper case it would be the duty of this court to arrest its decree of specific performance where it was shown that the vendor was unable to deliver title to the land which was the subject of the sale, there is nothing in the evidence here presented which indicates that the vendor is not able to deliver a good and marketable title to the premises in question. The main attack upon the title is based upon the trustee's deed and the foreclosure proceedings. Both these matters were before the court of errors and appeals and that court apparently considered them without merit as objections to the title. As to the variation of six and sixty-seven hundredths of a foot between the deed and survey distances from Clinton avenue, the testimony of two competent engineers shows that there is nothing in it.
It is true that the contract provided that title should not be based upon adverse possession, but it is too late now to object to title on that ground, assuming that the title is not subject to successful attack because invalid. The defendant-petitioner had ample opportunity to examine the title and satisfy itself as to its condition prior to the final hearing in this court but did not do so. If, therefore, the vendor has a valid title, notwithstanding it may be based upon an adverse possession, the vendee will not be subjected to unreasonable hardships by accepting such title and should be obliged to perform. But aside from that it is clear that the complainant has a good statutory title. The testimony taken on this proceeding showed that the complainants and their predecessors in title had had actual possession of the premises in question for upwards of forty years. The statute (Cum. Supp. Comp. *488 Stat. 1924 p. 1816 § 28) provides that thirty years' actual possession of any lands except woodlands or uncultivated tracts uninterruptedly continued by occupancy, descent, conveyance or otherwise, shall vest full and complete title in every actual possessor or occupier of such land and shall be a complete bar to all claims for the recovery thereof. It is clear, therefore, that the complainants have a complete statutory title. Such a title is not title by "adverse possession" within the meaning of that term as used in the contract. Model Plan Agency v. Diamond,
Defendant's argument is based upon the proposition that equity will not compel a purchaser to specifically perform his contract of purchase where there is a doubtful question of law or fact affecting the title of the vendor. There is no doubt about this rule. Kohlrepp v. Ram,
Acceptance of vendor's title will impose no hardship upon the defendant. The only hardship that could possibly arise would be by reason of its inability to erect an apartment house on these premises, but that matter has already been disposed of both by the court of errors and appeals and by this court. The petition will therefore be dismissed. *489