51 N.J. Eq. 624 | N.J. | 1893
This bill is filed to foreclose a mortgage. In 1881 the heirs-at-law of William Rea, deceased, filed their bill for the partition of lands, which descended to them upon his death. The result of these proceedings was a sale of the lands free from their mother’s right of dower. They secured to her her interest by giving to the chancellor this mortgage, conditioned that the interest should be paid to her. William, one of the heirs-at-law, became the purchaser. In 1889 he died without children, never having married. His brothers and sisters being his heirs-at-law, again took proceedings in this court for partition of the same
The defendant resists the payment of the whole amount due upon the said mortgage, and files a cross-bill, in and by which he claims that he purchased the said land by the acre, and paid for it by the acre at the rate of one hundred and ninety-five acres and ninety-eight one-hundredths of an acre, and insists that there were not so many acres conveyed to him, because of which he is entitled to a deduction from the whole amount of said mortgage equal to the value of the number of acres less than one hundred and ninety-five acres and ninety-eight one-hundredths of an acre, at the rate per acre at which he bid. He also, by his cross-bill, claims deduction for a large number of acres which it is alleged were and are a great portion of the time overflowed or submerged by water, because of an artificial dam which was raised in the construction of the Morris canal, which renders so much of the land comparatively worthless.
In the cross-bill the allegation is that the quantity of acres less than the amount named in the deed, and less than the amount offered at the sale, and for which paymént was made, is twenty-two. The complainant insists that a fair construction of the surveys shows that there is no deficiency.
Under the most liberal interpretation it is difficult to calculate a deficiency exceeding four acres and twenty-two one-hundredths of an acre, and this is all that was finally insisted upon by the counsel of the defendant. To reach this amount, highways and by-roads, as well as a parcel of- land sold by William Rea in his lifetime, are included.
At the sale, according to the conditions, and according to the report of the master who made the sale, the number of acres offered was one hundred and ninety-five and ninety-eight one-hundredths. In the deed it is declared that the property was sold by the acre, and that the quantity was one hundred and ninety-five acres and ninety-eight one-hundredths of an acre. The description of the premises in the deed concludes thus: “ Containing 195.98 acres, bé the same more or less.”
This claim for deduction because of highways and by-roads is wholly unfounded. The defendant attempts to justify this claim by setting up that he at one time was the owner of this entire tract, and that he sold and conveyed it, excepting all roads made or to be made, and the title passed by virtue of a mortgage with a like exception, under which there was a sale. The extravagance of such a demand is apparent when it is observed that it not only included roads already made, but roads that were to be made. The legitimate consequence of this insistment is that either this defendant or some one in privity with him had the title to these roads, and in case they had been abandoned by the public could have entered upon them and occupied them by buildings or otherwise, thus separating this tract into as many parcels as would be indicated by the number of roads crossing it.
The only point meriting consideration is that which springs from the fact that one acre and thirty-seven one-hundredths of an acre of the land included in the survey, and which the deed purports to convey, had been conveyed away by the ancestor. In case of a sale of land at a given price per acre, is this such a deficiency as to entitle the purchaser to relief, when it not only appears by the deed that the sale was by the acre for a given number of acres, but also that the land surveyed and included in the description was the amount intended to be conveyed, whether more or less ?
In Dayton v. Melick, supra, the claim upon the part of the complainant was that he had purchased the land upon an agreement that there were a given number of acres. (I perceive no difference between a contract to purchase a tract of land at so much per acre, and an agreement to purchase a tract of land alleged by'the vendor to contain a certain number of acres for a-
It will be seen from all the authorities that the value or price per acre agreed upon has. much to do with the judgment of the court in determining the rights of the parties. But that value or price, so far as I can learn, is determined by the agreement,, and is fixed at the rate per acre therein specified, and not at the
The cross-bill should be dismissed, with costs. The complainant is entitled to a decree for the whole amount due upon his mortgage, with costs.
For affirmance — Abbett, Depue, Dixon, Garrison, Lippincott, Reed, Van Syckel, Bogert, Phelps, Smith — 10.
For reversal — None.