94 N.J. Eq. 327 | New York Court of Chancery | 1923
Complainant’s bill is for specific performance of contract of sale of lands, or at least is of a kind usually spoken of as coming within that category. It seeks to compel the conveyance to himself of certain lands comprised in contract of sale between himself as vendee and the defendants Bossi as vendors, the legal title to which lands was subsequently conveyed by the Bossis to the defendants DeFalco.
"1. No sufficient facts are set forth in paragraph 2 of the complaint to justify the conclusion -as a matter of law that John A. Ackley was the authorized agent of the defendants Frances Rossi and Anthony J. Rossi.
“2. Because the agreement mentioned in paragraph 4 of the bill of complaint is neither signed nor acknowledged by any of the defendants or any of the parties to be charged therewith.
"3. Because in paragraph 6 of the complaint it is alleged that ‘Frances Rossi and Anthony J. Rossi, her husband, fraudulently contrived with Anthony DeFalco,’ &c., without setting forth any facts constituting the fraud complained of.
“4. Because while complainant sets forth in paragraph'13 of the complaint that he was ready to execute a bond and mortgage and ready and able to deliver the entire balance of the money in accordance with the said agreement, complaint fails to contain an averment of the tender of the purchase-money, as an averment merely that the complainant was ready and willing to perform all things on his part to be performed and to complete the contract is not sufficient.”
Reasons 1 and 3. These need but slight consideration. Both are, strictly, objections to particular parts of the bill as contravening specific rules or principles as to the method or form of pleading, rather than specifications of omission from the bill, as a whole, of allegations deemed requisite in order for the bill to make out a prima facie case. Since the motion is addressed to the bill as a whole, I shall not deal with these two “reasons” as I should be called upon to do if they had been submitted on motion under rule 53. It may, however, not be amiss to point out that one of the objects of the 1915 chancery rules was to shorten and simplify pleadings'—■ vide rules 44, 1st paragraph; 47, 50, 51, and 53. If the pleader errs by going too far in the direction of brevity, adequate provision for the benefit of his adversary is afforded by rules 45 and 44, last paragraph.
Reason 2. This is the only meritorious contention in support of defendants’ motion—albeit the formulation thereof is inapt. The points thereby intended to be made are (a) that the bill fails to allege or show that the contract of sale was signed by the vendors, and that this omission is fatal, under the statute of frauds; and (b) that the bill fails to set forth that the contract of sale was acknowledged by Mrs. Rossi; who was the owner of the premises and was a feme covert, and that this omission is fatal, under section 39 of the act concerning conveyances.
As to the first proposition (a), complainant argues that the statute of frauds does not limit the requisite signing of the contract to a signing by the vendors (or the “party to be charged therewith”), only; that it is equally efficacious if the contract be signed by “some other person thereunto by him or her lawfully authorized;” that such “lawful authorization” need not be by written instrument, but is sufficient if merely by parol; and that the bill alleges that the con
All this is true. I doubt, however, that it sufficiently appears, either by the bill or by the copy of the written agreement annexed thereto, that the contract was in fact signed by the agent (nor, of course, by the principals). To complainant’s name, at the foot of the copy of the agreement, is prefixed the parenthesized word “(signed),” but not so as to the name of the agent. The bill alleges that Ackley as the vendors’ duly authorized agent “entered into the written agreement” with complainant—but quaere, is that statement equivalent to, or does it import, an allegation that he actually signed it ?
Fortunately the point needs not to be determined upon any such narrow, technical ground. The answer to defendants’ proposition is that it is not necessary for complainant to allege that the bill was signed either by the vendors or by a duly authorized agent. He is not required to negative by his bill the application of the statute of frauds. Ziegener & Lane v. Daeche, 91 N. J. Law 634.
As to the second proposition (b) : In Corby v. Drew, 55 N. J. Eq. 387, it is held that equity cannot specifically enforce against a married woman her contract of sale—in the absence of her acknowledgment to such contract as required by the statute (section 9 of the act as then in force). In Goldstein v. Curtis, 63 N. J. Eq. 454, the converse is decided, namely, that a contract of sale by a married woman is specifically enforceable against her, if it has been duly acknowledged by her, and such acknowledgment duly certified, all in accordance with the provisions of the thirty-ninth section of the act concerning conveyances. In Ten Eyck v. Saville, 64 N. J. Eq. 611, it is determined that a married woman’s unacknowledged contract of sale affords the vendee no right to a decree in equity compelling conveyance to himself from her subsequent grantees with notice. At the time of these decisions the thirty-ninth section of the statute referred to required the married woman’s acknowledgment to be made separate and apart from her husband and to be that her ex
In the instant case the married woman did not herself sign or acknowledge the contract of sale. Assuming that it sufficiently appears that it was signed by any one beside vendee (vide supra), it was signed on behalf of herself and her husband by J ohn W. Ackley as their “duly authorized” agent, and it is also alleged that it was acknowledged. By whom it was acknowledged is not alleged—whether by the vendors or one of them, or the agent Ackley, or by the vendee. If the fact of the acknowledgment by the married woman, or her agent, is a necessary allegation in the bill (which will be discussed later), the allegation actually made is insufficient, and nothing appears on the copy of the contract to cure the defect. Let us assume for the present that the acknowledgment was by the agent and was made on behalf of the married woman vendor and himself as her agent. Would that operate to make the contract enforceable in equity against her?
By the act of 1918, supra, the act concerning conveyances, section 39, provides that—
“every deed or instrument of the nature or description set forth in the twenty-first section of this 'act * * * executed by her (i. e., a feme covert), and so acknowledged and certified as aforesaid, shall be good and effectual to convey or affect the lands * * * or her interest therein, thereby intended to be conveyed or affected.”
The specification in the twenty-first section includes “letters of attorney for any sale, conveyance,” &c.
It would seem probable that under these statutory provisions, a contract of sale executed and acknowledged by the agent of a feme covert .vendor, in her name and on her behalf, should be sufficient to give the vendee a right to specific enforcement of such contract, if the agent had been clothed with the authority so to execute and acknowledge such contract, under and by virtue of a written power of attorney in that behalf, executed by the feme covert and having her acknowledgement and the certification thereof pursuant to the statute. Compare Goldstein v. Curtis, supra (at pp. 460, 461). At any rate let us assume this to be true. Nevertheless I think there can be no doubt that such contract made and acknowledged by the agent under mere parol authority or under any other authority than such written power of attorney, executed and acknowledged by the feme covert and with the requisite certification thereof, would be of no avail whatever to a vendee seeking specific performance. Compare the reasoning in Corby v. Drew, supra (at pp. 392-3), and Ten Eyck v. Saville, supra (at p. 612).
So much for the substantive law. Remains to be considered the application thereof from the standpoint of pleading. It is quite clear that the facts of the married woman’s acknowledgment and the certification thereof (either to the contract of sale itself or at least to a power of attorney for such contract) are essential to the creation of the vendee’s right in equity. Their right does not affect his right at law
In Wilkinson Gaddis Co. v. Van Riper, 63 N. J. Law 394 (at p. 396), the rule is set forth:
“The general rule of pleading is th-at when a statute makes a writing necessary in a common law matter, -where it was not so before, in declaring on that matter, it is not necessary to state that -it is in writing, although it must be proved in evidence; but when the matter is created by statute -and a writing is required, then the pleading must aver the existence of the writing. Brandt S. & G. (ed. 1878), section 77, and cases cited.”
Under that principle, the inquiry in the instant case isi whether or not, prior to the original enactment of the prohibitory provision now comprised in section 39 of the Con
I think, therefore, that that decision controls the disposition of the present motion, and that complainant’s bill must be struck out because of the failure to show, at the least, a proper power of attorney, acknowledged by the defendant Frances Rossi, and the certification of such acknowledgment.
Complainant may be able to amend, and may have leave so to do within ten days.