94 N.J. Eq. 736 | N.J. | 1923
The opinion of the court was delivered by
The complainant and defendant owned adjoining lots which were vacant, except that defendant had a small shed on his, and a fence on the supposed line between the two lots.
The complainant built its wall along the line thus established.
After the building was completed defendant caused another survey to be made by another surveyor, admitted to be more accurate than the first, which disclosed that complainant’s easterly wall encroaches on defendant’s lot to the extent of about one foot in front and a less distance in the rear, negotiations seem to have been had between the parties looking to the adjustment of the difficulty which failed, and defendant brought a suit in ejectment to recover possession of the land on which complainant had thus encroached, which, if successful, will require complainant to take down, substantially, the east wall of the building, which is four stories high. The complainant filled this bill to restrain the prosecution of the ejectment suit, and the establishing of the wall at the boundary line. The vice-chancellor, who heard the cause, advised a decree dismissing the bill,-’ and complainants have appealed.
The vice-chancellor held that the doctrine of mutual mistake did not apply because the complainant’s surveyor made the mistake on which defendant relied, and that he was not bound to have his land surveyed when complainant’s surveyor assured him that the dividing line was established by him. But this is not a fair inference from the facts. There is no doubt but that where complainant built its wall on defendant’s land it did so under a mistake as to the true line; and it was a mistake which the defendant entertained when he moved his fence. It does not make any difference how the mistake arose,, in the absence of fraud, and it is not pretended that
“If he knew this to be his lot, his silence was a fraud upon the complainant; but this is not pretended.”
This case cannot well be distinguished from the instant case. The complainant was clearly mistaken as to the line, and defendant either knew or did not know where the line was, and if he knew then he was guilty of a fraud; and if he did not know, but supposed it was where complainant said it was, then he was mistaken, and h.is subsequent conduct in moving his fence and shed, and helping measure the proposed line, shows -that he was mistaken, and as Chancellor Williamson said in the McKelway Case, it would be unjust to permit defendant to take the wall, and send the complainant away remediless.
A similar result was reached in Anglescy v. Colgan, 44 N. J. Eq. 203, in which Chief-Justice Beasley, speaking for this court, referred to McKelway v. Armour, supra, with approval, as did Mr. Justice Reed, in Megie v. Bennett, 51 N. J. Eq. 281.
Equity, under the facts in this case, requires that defendant should be restrained from prosecuting his ejectment suit and decreed to release to complainant the land in dispute on payment to him by complainant its market value, to be ascertained by the court of chancery.
The decree appealed from will be reversed and cause remanded to the court of chancery for further proceedings not inconsistent with this opinion. The decree is reversed.
For affirmance—Hone.
For reversal—The Chiee-Justice, Teen-chard, Parker, Bergen, Kalisch, Black, Katzenbach, White, Heppen-HEIMER, ACKERSON, VAN BüSKIRK-11.