73 N.J.L. 38 | N.J. | 1905
The opinion of the court was delivered by
This is a motion to enter judgment for the plaintiff upon a special verdict in ejectment. Plaintiff claims the right of possession as assignee of a leasehold interest in the premises. The verdict sets forth that one John Barber, being owner of the entire leasehold interest in question, and being in actual possession of the whole of the premises as such lessee, assigned the leasehold interest to one Anna Miller, who in turn assigned it to the plaintiff. John Barber was at the time mentally incapable of understanding the nature and effect of the transaction in which he was engaged. The assignment, although taken in the name of Anna Miller, was taken by her for the plaintiff's benefit through one August Miller, who acted as the plaintiff’s agent in the negotiations for and purchase of the lease. He did not know at the time, nor did he have such knowledge as would have led a reasonably prudent person to believe, that John Barber was mentally incapable. The price paid by August Miller as agent for the plaintiff to John Barber as the consideration for the assignment was $3,500, which was paid to Barber in cash. This was $1,500 less than the fair market value of the leasehold interest. Immediately after ihe assignment Barber disappeared, and his whereabouts from that time have been unknown. The family of Barber, who are defendants in this suit, continued to occupy a part of the premises and refused to recognize the assignment, having
It is properly conceded by counsel for defendants that since John Barber’s deed of assignment was made before his lunacy was found by commission, and since the plaintiff or his agent had’ no knowledge or notice of the insanity, and dealt with the lunatic in good faith, paying for the assignment a good and valuable consideration, the deed is not void, but only voidable, and that it can be avoided only on paying or tendering back to the plaintiff the consideration paid to him, less so much as he has received by way of rents and profits since the assignment. Eaton v. Eaton, 8 Vroom 108, 116; Blakeley v. Blakeley, 6 Stew. Eq. 502, 508; Doughten v. Camden Building and Loan Association, 14 Id. 556, 561; Matthiesen & Weichers Refining Co. v. McMahon’s Administrator, 9 Vroom 536.
Until avoidance, the deed of the lunatic in such cases remains good in law. Payment or tender of the consideration money received by the lunatic, less any proper offsets, is a condition precedent to avoidance. The special verdict in the present case does not set forth a legal tender, and there is therefore no legal obstacle to the recovery by the plaintiff of
This judgment, of course, will only settle the legal title and right of possession as they stand at present. Ejectment Act, §§ 42, 43, 44; Gen. Stat., p. 1288. Whenever the deed of the lunatic shall be legally avoided, the premises may be recovered back from the plaintiff, for the judgment herein will not conclude the defeated party as to a title or right of possession subsequently accruing. Hoboken Land and Improvement Co. v. Mayor, &c., of Hoboken, 7 Vroom 540, 545; Hunt v. O'Neill, 15 Id. 564.
Nor does it necessarily follow, even from the present judgment, that the defendants must submit to' be actually ousted from the premises. They, or at least one off them (the guardian in lunacy), asserts a right to avoid the deed of assignment, which right is legally incomplete because the tender has not been' effectively made and followed up. The judgment herein will not be conclusive against such an equity. The guardian is still at liberty to assert it by making an effective tender of the amount paid by the plaintiff to John Barber, with interest, subject to a proper discount for the amount of rentals received by the plaintiff from the premises since the assignment.
Whether this relief shall be sought by the defendants through application to this court for a stay of execution or by bill in chancery to restrain the enforcement of the judgment in ejectment is for the defendants, to determine. It is well settled that this court, like other courts of law, has a summary jurisdiction of an equitable nature, exercised through a stay of execution and the like, for the purpose of preventing its own judgments and process from being made the means of working injustice. Numerous instances of the exercise of this jurisdiction are cited in Johnston v. Bowers, 40 Vroom 544, 547. See, also, Wemple v. Von Arx, 17 Id. 531; Hickman v. State, 33 Id. 499, 504; Weatherby v. Weatherby's Executors, 34 Id. 445, 448; Intiso v. Metropolitan, &c., Association, 39 Id. 588, 590; Bailey v. Pennsylvania Railroad Co., 41 Id. 308, 311.
