19 N.J. Eq. 63 | New York Court of Chancery | 1868
The complainant, Mary H. Polhemus, and the defendants, Emanuel Hodson and Anna M. Cook, wife of Charles L. Cook, were each seized in fee of one-third of a ten acre lot, in the county of Burlington, of which John Hodson, the father of Mary and Emanuel, and the grandfather of Anna, died seized, intestate. The defendant, Lucretia Hodson, the widow of the intestate, had released her right of dower in it.
The complainants file their bill for partition. The defendant, Emanuel Hodson, by his answer, sets up that Charles L. Cook and wife had executed and delivered to him a deed, conveying the third of Anna M. Cook, and that the complainants had bargained and sold their part to him, and had agreed to execute a deed for it.
By the evidence, it appears that Cook and wife and the complainants had verbally agreed to convey their right in the premises to Emanuel Hodson, for $3000; the deed had been signed, and the execution duly acknowledged, but had never been delivered, or stamped, nor the consideration paid¡ It was held by the complainants in this condition. There is much testimony taken about an alleged award on a submission. The validity of that award is of no consequence to the only question raised here — the fact of the delivery of the deed.
The answer does not set up that the deed was delivered by the complainants; and the evidence clearly shows that it was not delivered at all. Even if a case had been shown, entitling Emanuel to relief in a suit for specific performance, it is no bar to this suit. He may never be willing to pay the $3000, or call on the parties to perform. Partition must be decreed.