75 N.J. Eq. 109 | New York Court of Chancery | 1908
The bill in this case is filed against Wassmer and Radcliffe to compel the specific performance of an alleged contract to convey lands. The so-called contract, a copy of which is given below, was signed by Wassmer, although the title to the lands in question was in Radcliffe. It was testified at the hearing that Wassmer and Radcliffe had some sort of a joint interest in a number of lots of land of which the one in question was one, although their titles were separate and distinct, and that Wassmer had authority from Radcliffe to make the contract in question. The bill does not state whether the agreement was in writing or not. The answer alleges that it was oral, and it sets out what the defendants claim the contract was. The difference between the two consists in this: the defendants, who are the vendors, claim that it was agreed that the land should be conveyed with certain
The agreement between the parties was made in September, 1907, at which time the vendee paid $50 on account of the purchase-money and took a receipt therefor which has been destroyed. On October 3d, 1907, he paid $750 more, -making $800 up to that time, and some time prior to October 19th, 1907, he paid the further sum of $302, these three payments aggregating the total amount of the purchase-money that was to be paid in cash. The land was subject‘to a mortgage held by a building and loan association on which the vendors were liable as bondsmen. Some time between the first and last payment of the purchase-money installments the vendee executed a new bond and mortgage in his own name to take the place of the ones previously executed by the vendors and held by the building and loan association, these being steps preliminary to the taking of the title. At the time the vendee made the payment of the seven-hundred-and-fifty-dollar installment of the purchase-money he received a receipt for it of which the following is a copy:
'Tbvinqtow, N. J., Oct. 3d, 1907.
“Received from J. L. Krah the sum of eight hundred dollars on account of purchase price of Smith street property, purchase price to be thirty-five hundred and fifty dollars, two hundred and two dollars to be paid on or before Oct. 19th, 1907. The balance to be paid by said J.. L. Krah assuming and agreeing to pay a present Building and Loan mortgage now upon the above premises for twenty-five hundred and forty-eight dollars.
“John Wassmeb.”
On October 4th, 1907, the vendee, with the knowledge and consent of the vendors, took possession of the said premises and with his wife and family has actually resided thereon until this time. About the time the complainant entered into possession the defendant Radeliife and his wife executed in due form of law and properly acknowledged a deed of conveyance to the complainant and his wife for the lands in question, which deed did not contain the restrictive covenant that the vendors now insist upon.
The defendants claim that the receipt above set out is not a contract,* or, at least, if it is a contract, it belongs to that class
The vendors next claim that inasmuch as the bill does not set out the fact that the agreement was in writing the vendee cannot have a decree because of the statute of frauds, the benefit of which the vendors claim, and that it was competent for the defendants, by an answer in such case to set up their version of the oral agreement, and that the agreement so set u¡5 without
It is also urged that the defendants’ vendors intended that certain restrictions should be part and parcel of the contract, and that they were omitted from it and from the deed by mistake. Pure mistake of fact is sometimes a defence to a suit for
I think that whether the complainant relies upon the receipt of October 3d, 1907, or upon an oral contract of the character which must be inferred from the bill, he has a valid contract which is enforceable in this court. The bill states the complainant’s idea of the contract, and it turns out that he has completed the contract which he has set out by payment of the full consideration and was thereupon let into possession at the time of the payment. This of itself would give the complainant a right to a decree for a deed in accordance with the contract that was proved, whether it be an oral contract or the written one of October 3d, 1907. If the complainant is compelled to stand upon the oral contract I think he may refer to the receipt for the purpose of showing what the terms of the oral bargain were.
It is insisted that Mrs. Krah, the wife of the complainant, had notice that the lands were restricted. This evidence consisted of three items. She saw an advertisement in a newspaper of the sale of the property in question which described it as being situate in a restricted section. There is a large painted sign at the head of the street on which the property is located which describes the neighborhood as a restricted neighborhood. The agent of the vendors told her that the property was restricted so that there could be no nuisance, no saloons, and that all houses were required to be built on the same street line. This was entirely oral; no one had any written document showing exactly what the restrictions were or were to be. The defendant Radcliflle who talked with the complainant never mentioned the restrictions at all, and it does not appear that the complainant
There is no positive proof in the case as to exactly what restrictions the defendants are insisting upon. The allegations of the bill in that behalf are not supported. The agent of the vendors was called and gave his evidence as is above stated. They also called a witness named Eclcer, who purchased a lot from the vendors and who testified that the restrictions were that the fronts of the houses should all be built on one line and that the houses should be three-story houses; that there should be no factories, saloons or breweries on the premises. If the court were satisfied that it was intended that the use of the land should be restricted, there is nothing in the case to indicate what restrictions were intended or were agreed upon.
I am therefore of opinion that when the complainant bargained for the premises in question, he did so with the idea that he was to receive the title to the property free and clear of all encumbrances, and that he is now entitled to insist upon a conveyance without the restrictions which the defendants are attempting to impose upon him. Lounsbury v. Locander, 25 N. J. Eq. (10 C. E. Gr.) 554. The ease does not differ in its essential features from Richards v. Green, 23 N. J. Eq. (8 C. E. Gr.) 536. In that case the complainant set forth two agreements, the first being oral, whereby the defendant Richards agreed to convey to the complainant Mr. Green a house and lot for $2,500, to be paid for as follows: $500- in cash, and the remainder secured by bond, with an accompanying mortgage covering the premises. The other agreement was an instrument in writing in favor of the wife of the complainant Green, which was signed by the defendant Richards alone. In that case the complainant was permitted to enter into possession of the premises; and the court examined into the oral agreement and into the written agrément for-the purpose of ascertaining what the terms of the actual agreement were. The complainant was given a decree for specific performance.
In this case, on the evidence, the complainant is entitled to a decree. Unless he can have relief in this court and in this suit, he will be in the anomalous position of having a right to the
It appears, as already stated, that a deed was executed by the defendants Eadcliffe and wife to the complainant and his wife. This deed was before the court at the hearing as an exhibit; it appeared to have been executed and properly acknowledged, not only by Eadcliffe, but by his wife also, which may be taken as evidence that she was willing to release her right. In Hulmes v. Thorpe, 5 N. J. Eq. (1 Halst.) 415, a similar situation was developed, concerning which the chancellor said: “It may be that the wife’s acknowledgment of the deed in this case should be considered as equivalent to her express consent to execute it, and that on this ground the court would be justified in making a decree that Thorpe deliver a deed executed by him and his wife, but it would be safer for the court to decree the delivery of the deed already executed by her, and perhaps it would be safer for the complainant.” I will follow that course in this case. If the complainant will accept the deed already executed to himself and his wife, a decree will be made that such identical deed be delivered.
If he will not accept this deed he may have a decree for specific performance against Eadcliffe ■ alone.
While the complainant is entitled to the relief above indicated upon the evidence, it ought not to be adjudged to him on the present state of the pleadings. I find the following defects in them which must be remedied—first, the bill is filed by Mr. ICrah alone. If he intends to take advantage of the option to accept the deed made to himself and bis wife, the bill should be amended by adding the wife as a party complainant, alleging the execution of the identical deed in question and praying that it should