Eckhouse v. Berwyn EstatesEckhouse v. Berwyn Estates
After affirmance of the final decree in this cause by the court of errors and appeals (106 N.J. Eq. 276) a petition was filed on behalf of the defendant praying that this court reopen and set aside its final decree on the ground that specifiс performance by the defendant in accordance with that decree would impose an unreasonable hardship upon the defendant for two reasons: first, that it was impossible because of building restrictions for the defendant to erеct an apartment house on the lands the subject of the contract as contemplated by the agreement оf sale; and second, that the title to the lands was defective in several particulars, specifically set out in the рetition. On the return of the order to show cause issued upon the filing of that petition an order was entered referring the mаtter to a master for the purpose of taking testimony respecting the alleged defects of title. The court refusеd to consider the matter of the building restrictions as a ground for reopening the decree inasmuch as that matter had bеen considered both by this court originally and by the court of errors and appeals on appeal. This procеeding is in the nature of a bill of review and is the simpler course of procedure now recognized. In re O‘Mara, 106 N.J. Eq. 311. In Boyer v. Boyer (1910), 77 N.J. Eq. 144, it was suggested that “aftеr the period for appeal has expired, or after an appeal has been taken and the decree affirmed, the court of chancery cannot entertain a petition to open a decree. Such a dеcree can be challenged only by a bill of review.” But in equity there is no magic in form and the practice by petition and order to show cause, after time to appeal has expired, has been recognized by the court of errоrs and appeals in Mitchell v. Mitchell (1924), 97 N.J. Eq. 298. No objection to the present form of proceeding was made here and I think it should be “reсognized in aid of simplicity and directness of procedure.” Pursuant to the order of reference testimony has been tаken respecting the alleged defect in title and that testimony, together with briefs of counsel, has been submitted and considеred and I
An inspection of thе briefs submitted in the court of errors and appeals on behalf of both complainants and defendants indicates that аll 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 dеcree of specific performance where it was shown that the vendor was unable to deliver title to the land whiсh 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 variаtion of six and sixty-seven hundredths of a foot between the deed and survey distances from Clinton avenue, the testimony of two cоmpetent engineers shows that there is nothing in it.
It is true that the contract provided that title should not be based upon adversе 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 cоndition 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 shоuld 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 possessiоn of the premises in question for upwards of forty years. The statute (
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 affеcting the title of the vendor. There is no doubt about this rule. Kohlrepp v. Ram, 79 N.J. Eq. 386; Sharpe v. Stretch, 98 N.J. Eq. 225; Breitman v. Jaehnal, 99 N.J. Eq. 243. But the doubt must be real and not fanciful. Breitman v. Jaehnal, supra. And where it appears that a complete and unassailablе title has vested by virtue of a statute, specific performance will not be refused even though without the statute the court would refuse its aid.
Acceptance of vendor‘s title will impose no hardship upon the defendant. The only hardship that сould possibly arise would be by reason of its inability to erect an apartment house on these premises, but that matter hаs already been disposed of both by the court of errors and appeals and by this court. The petition will therefore be dismissed.