125 N.J. Eq. 439 | N.J. Ct. of Ch. | 1937
Petitioner, Joseph O'Donnell, seeks the return of $21,000 which he and his assignor heretofore paid to the receivers of the insolvent defendant corporation as a deposit on account of the purchase price of its assets whereof he was declared to be the successful bidder. *440
These assets consisted of a large tract of land adjoining the State Highway route No. 4, in the borough of Paramus, the buildings thereon, as well as all of the equipment therein; all of which were formerly used by the defunct company in connection with the conduct of the printing, developing, coloring and processing of motion picture films business in which it was engaged.
The basis of the present application for the return of the deposit money is the asserted receivers' inability to convey the lands in question "free and clear of all liens and encumbrances," as was expressly stipulated in the written offer therefor submitted to and accepted by the receivers, because of the undisputed existence of slope rights in favor of the State of New Jersey and subject to which the receivers, of necessity, held the title to the lands in question. In this respect, the case at bar is clearly distinguishable, and must be distinguished, fromBigley Bros., Inc., v. Harrison Beverage Co.,
An encumbrance has been defined and held to be any right to or interest in an estate to the diminution of its value (Bier v.Walbaum,
Notwithstanding this, however, it is contended, upon the authority of Campbell v. Parker,
Viewed in the light of the foregoing, it was incumbent upon the receivers, under the express provisions of the accepted offer, to convey the premises in question free and clear of the state's slope rights. This they were, and are, not legally able to do. In the absence of any fraud or imposition on the part of the offerer, of which no claim is here made, this court cannot compel him to accept and pay for something different than that which he bid for and the receivers agreed to give him. To do so would not only be to effect a vital change in their agreement but to make a new and different one for them, to do which this court is without power. *442