69 N.J. Eq. 784 | N.J. | 1906
The opinion of the court was delivered hy
The complainants by their hill seek the reformation of a conveyance of lands made to them hy the defendants Peter Hulick,
The facts recited in the bill present a case which entitles the -complainants to relief. Upon payment of the consideration -provided by the agreement they were entitled to have delivered to them by the defendants a conveyance which should conform to the terms of that agreement. The intentional insertion in the deed by the defendants of the restrictive covenants set forth in the bill was in fraud of that right. Its delivery by the deféndants to the complainants without a disclosure of the fact that it contained these covenants was equivalent, it seems to me, to a declaration on their part that the deed was drawn in conformity, to the provisions of the contract. It is true that the -complainants might readily have discovered, by an examination -of the deed before accepting it, that it was not what they had bargained for, and it may be conceded that prudence upon their part required a scrutiny of the deed before its acceptance by them. But I am not able to perceive that their failure to discover the fraud disentitles them to relief. Ip the transaction of business men ordinárily deal with -one another in the belief that ■each is honest. If the opposite belief prevailed in such dealings ¡attempted frauds would rarely be successfully carried into execution and courts would seldom be called upon to grant relief ¡against them. Failure to discover an intended fraud before it has been actually perpetrated must necessarily exist in every case where the courts are appealed to to relieve the wronged party from its effects, and the fact that the exercise of a greater -degree of prudence on the part of him who has been defrauded would have prevented the fraud from being successfully carried through affords no ground for refusing relief.
The effect of the restrictive covenants contained in the deed is beyond question to reduce materially the value of the granted
The order overruling the demurrer should be affirmed.
For affirmance—Ti-ie Chief-Justice, Garrison, Garret-son, Pitney, Swayze, Eeed, Bogert, Vroom, Green, Gray —10. • .
For reversal—Dixon, Yredenburgh—2.