112 N.J. Eq. 422 | N.J. Ct. of Ch. | 1933
The bill tells a simple story, split up into three parts, captioned "first," "second" and "third" causes of action. *423
The Chancellor Development Corporation owned a tract of land known as Weequahic Heights in the town of Irvington, which it divided into streets and lots, plotted on a map which the town officials accepted as a dedication of the streets to public use. Later, September 21st, 1926, the town ordained, vacating one of the streets and restored it to the plot as lots. The corporation contracted to sell to the complainant five of the lots formerly the street, and, in fulfillment, conveyed them to Louis Goldfarb, who, by general warranty deed, conveyed to the complainant, November 10th, 1926, subject to a $4,250 mortgage, which he assumed, and street assessments due Irvington. The ordinance vacating the street was defectively published, a line was left out which, it is alleged, invalidated the entire ordinance. Another and admittedly valid vacation was ordained March 31st, 1931, and properly published.
The grievance is that purchasers of lots, purchased before the vacation of the street in 1931, acquired an easement in the street and their rights, which remain unaffected by the vacation, is a cloud on the title of complainant's lots, rendering them unmarketable.
The cause for action is that the corporation (owned and officered by Louis and Samuel Goldfarb, and who are now its trustees, the corporation having suffered an involuntary dissolution for non-payment of the state franchise tax) and Louis and Samuel Goldfarb knew of the cloud on the title of the lots and, knowing, represented that they were encumbered only by the $4,250 mortgage and street assessments due the town of Irvington. That the corporation, Louis and Samuel, conspired an escape of liability for the corporation and Samuel by conveying the lots to Louis, to be by him conveyed to the complainant (the nature of the liability is not disclosed, but we surmise it to be the responsibility for Louis' general warranty). That the complainant discovered the defect in the title in November, 1931, and that he has since diligently negotiated with the corporation, Louis and Samuel, and though they have promised to remove the cloud or pay the cost of removing it, have failed in their promise. *424
The prayers are that the defendants be compelled to cure the title or pay the cost, or that the transaction be rescinded for fraud and the purchase price restored.
The motion is to strike the bill for want of a showing of an equitable cause for action.
The frame of the bill is open to the criticism, that it presents a single cause of action against the three defendants, the corporation and the two Goldfarbs; it should have been cast as a single complaint. Rule 59, providing for pleading separate causes of action, relates to independent causes of action. It is intended to prevent the confusion of independent causes in a single pleading as well as to avoid a multiplicity of suits, in accommodation to other rules permitting joinder of common causes or of parties having common interests.
Allowing for present day looseness in pleading and pleader's license with substitution of assumptions and conclusions for statements of facts, there can be spelled out that the complainant's lots had been a dedicated highway in a subdivision, plotted, and sold in lots before the highway was vacated by the town in 1931; that purchasers of lots acquired a way in common over the highway, growing out of the neighborhood scheme — an encumbrance — (Pound v. Pleister,
The case as made by the bill is not, however, one where the representations relate to title. Here, the allegation is that encumbrances on the title were deceitfully misrepresented. Vice-Chancellor Buchanan, in Schweitzer v. Adami,