27 N.J. Eq. 247 | New York Court of Chancery | 1876
In 1869, Jarvis leased to Henwood, for a term of five years from the 1st of January, 1870, with privilege of renewal for five years more, certain extensive and valuable buildings and premises in Jersey City, then owned by the former, to be used for the storage and inspection of tobacco, or for general storage purposes only. The lease contained a provision that the lessor might terminate it upon a sale of the premises, on giving six months’ previous notice in writing, to the lessee, his representatives or assigns, who had the right to terminate or surrender it on like notice. In 1874, the lease, which had been in some respects modified, was, in accordance with its provisions in that behalf, renewed for five years from the 1st of January, 1875. On the 5th of November, 1875, Jarvis entered into a contract, in writing, with the defendant Schafer, for the sale of the premises to the latter, the deed to be delivered on the 10th of that month, for the consideration of $225,000, of which $25,000 were to be paid on the delivery of the deed, and the rest secured only by mortgage on the premises, (without personal liability on the part of Schafer for the mortgage debt, or any part thereof,) payable with interest at five per cent, per annum, in ten years from date, with an option to Schafer or his heirs or assigns to pay the principal before the end of that period, on notice. On the 10th of November, the deed and mortgage were delivered, and on the next day both were duly recorded in the register’s office of Hudson county. On the 5th of November, the day on which the contract for sale was made, Jarvis served upon Henwood a notice in writing, that he had made a sale of the premises, which was to be consummated as soon as the deed of conveyance for the property could be prepared and executed, and that the lease would be determined at the expiration of six months after the delivery of the notice to
The bill is filed for relief against the sale, and for discovery as incidental thereto. It attacks that transaction as a fraudulent contrivance, designed merely as a means of unjustly depriving the complainant of his term, and of inflicting irreparable injury upon him to a very great extent. Denying the bona fides of the defendants, it asks that they may be required to answer, (though not under oat-h,) and that they may be enjoined from taking any steps towards ousting the complainant from the premises. The defendants having answered the bill, their counsel insists that the injunction should be dissolved as of course, on the ground that they have made discovery. It is true, that when an injunction has been granted upon a bill filed merely for discovery, in aid of a defence at law, it will be dissolved as soon as the answer is perfected. King v, Clark, 3 Paige 76; Grafton v. Brady, 3 Halst. Ch. 79. In such case, the only object of the bill is to obtain the defendant’s answer, to be used on the trial at law, and there can be-no ground for restraining the defendant from proceeding at law after the discovery has been obtained. The bill in this case, however, is not such a bill. The rule, therefore, does not apply, and this motion is to be determined by the rules, applicable to cases where the bill is filed for relief, and discovery incidental to the granting thereof. The question, therefore, is, whether the equity of the bill has been answered.
The defendants have answered on oath, and, of course, on this, motion, are entitled to the benefit of their oaths. The facts, relied upon in the bill as the ground for impeaching the alleged sale from Jarvis to Schafer are, with perhaps two. exceptions, admitted in the answers. The exceptions are, the conversation which the complainant says took place between
But it is urged by the defendants’ counsel that the com
The defendants’ counsel, on the argument, insisted that the complainant had been guilty of such laches as to have forfeited his claim to the consideration of this court. It is true, that over six months elapsed from the time wheq the complainant was first apprised of the alleged sale and the time of filing the bill, but no objection is made in the answers, or either of them, on that score. But apart from that, it does not appear, and it is not alleged that the defendants, or either of them, have been prejudiced by his delay to make application to this court in the premises. He appears to have regularly paid his rent to Schafer, and always under protest against the honafides of the alleged sale, and as soon as proceedings for possession were commenced against him before the justice of the peace, he applied to this court for relief. The objection cannot avail the defendants.
The motion to dissolve will be denied, and the modification of the injunction permitting Schafer to keep the suit in the
The whole matter of terms on granting or continuing an injunction, is in the discretion of the court.