80 N.J. Eq. 432 | New York Court of Chancery | 1912
This is a hill for the specific performance of an agreement to convey real estate. The defendant objects to the title tendered by the complainant for the reason that it is not a marketable one, and he relies upon the title deeds for a demonstration and defence of his position. There are three tracts described in the agreement, as to one of which there is no objection; as to the' other two the objections are as hereinafter stated. For the sake of convenience I will refer to these two as tracts A and B.
The record shows that prior to June 3d, 1876, one William Nelson held a mortgage on tract A, which mortgage after his death was foreclosed. At the foreclosure sale the land was bought in by the executors and trustees under his will, and the title taken from the sheriff to them as such executors and trustees on the date last named. No other step occurs in the transaction until August, 1906, during which time two of the executors and trustees died, leaving Thomas Nelson as sole surviving executor and trustee. On the last-named day he, in his capacity of executor, transferred the title to William H. Eobinson, who in turn transferred it back to Thomas Nelson, individually, both deeds being in consideration of one dollar and other valuable considerations. Thomas Nelson subsequently died leaving a will by which he gave to his executors a power of sale of his real estate, by virtue of which power they conveyed the premises'in question to one Klimbaeh, who conveyed to the complainant, Gosman. The question in regard to this tract is whether enough appears upon the record to make the title unmarketable. It was held in the leading case of Smith v. Drake, 23 N. J. Eq. (8 C. E. Gr.) 302, that if an administrator or other trustee, directly or indirectly, should purchase lands at a sale made by himself as such, the sale would be set aside on application of the parties interested. In that case an administrator sold lands at public auction and obtained therefor a fair price, but the property was
Although the title to two of the lots is unobjectionable, the court cannot compel the defendant to accept a conveyance of them. He bargained for the three lots by one contract and at an inclusive price, and he cannot be driven to take a part only; he has the right to all or none.
I will advise a decree in accordance with these views.