27 N.J. Eq. 514 | N.J. | 1875
The opinion of the court was delivered by
John B. Miller, being the owner in fee of a tract of about fifty acres of land in Morris county, on the 10th day of June, 1872, entered into a contract in writing with Jehiel K. Hoyt; by which, for the consideration of $39,000, he agreed that he would convey the said premises, on or before the 1st day of September then next, to said Hoyt, his heirs and assigns, or to such person or, persons as Hoyt might appoint, by deed containing full covenants of warranty, clear of all encumbrances. Hoyt paid $100 of the consideration money at the time the agreement was signed, and stipulated for the payment of $4900 on the delivery of the deed, and the execution of a mortgage upon the premises conveyed for the residue of the purchase money, payable at the expiration of seven years from
On the 28th day of September, 1872, Hoyt gave notice in writing to David L. Miller, the heir-at-law, that on the then approaching 1st of October, he, Hoyt, would be ready to perform his part of the agreement of June 10th, and desired said Miller to convey the premises to said Reddish and Ohlen on that day. On the 1st day of October, 1872, Reddish and Ohlen tendered to David L. Miller so much of the purchase money as was to be paid on the delivery of the deed, and also a bond and mortgage, in due form, for the balance thereof, and demanded a deed. David L. Miller thereupon offered to convey the property to them if the money and bond and mortgage were delivered to him, and offered a warranty deed, with full covenants, duly executed by himself and wife, but they refused to accept the deed unless Miller would deliver with it a release of dower, executed by the widow of his father, and also procure to be satisfied of record a number of judgments outstanding against him. David L. Miller offered to indem
From this time forth until after the filing of the bill in this cause, no communication, verbal or otherwise, passed between the parties to this suit, or any of them, respecting this transaction, except that on the 13th of December, 1872, the widow gave notice in writing to the complainant, that .she would execute a release of her dower to Reddish and Ohlen, provided the purchase money was paid to the complainant, as administrator of her husband, but that she would not do so if it was paid to the heir-at-law.
In this condition of affairs, the administrator of John B. Miller, on the 20th day of December, 1872, filed his bill against Hoyt, Reddish, Ohlen, David L. Miller, and the widow, praying that the contract of June 10th, 1872, might be specifically performed by Reddish and Ohlen, and particularly that it might be decreed that David L. Miller was seized of the legal title as trustee for the purchasers ; that he be required to convey to them; that it might be decreed that the widow was not entitled to dower in the lands, and that her rights in and to the purchase money be ascertained and paid to her under the direction of the court. It is admitted that the estate of John B. Miller, other than this real estate, was ample to pay his debts; that the bill was not filed on behalf of creditors, and that they had no special interest in it. David L. Miller has been in possession of the lands in controversy ever since the death of his father. To this bill the defendant David.
The defendants Hoyt, Reddish and Ohlen, in their answer, insisted that it was highly important to the success of their .scheme to have a conveyance at the time agreed upon, and that it could not justly be enforced against them at the time the bill was filed. The Chancellor, on the 24th day of April, 1875, made a decree that Reddish and Ohlen should execute the contract, and pay $4900 of the purchase money, with interest from the 20th day of December, 1872, the day on which the bill was filed, and secure the balance, with interest, as if the deed had been delivered to and accepted by them on that day. From this decree the defendants Reddish and Ohlen have appealed, but the defendant David L. Miller has not appealed.
Under the circumstances stated, I think the case is not different in its legal aspect, so far, at least, as the defendants Reddish and Ohlen are concerned, from what it would be if the bill had been filed by the widow. The complainant is a mere trustee, seeking to recover the purchase money for .the widow and heir, who alone had the power to make such a title as the purchasers were bound to accept. Unless they united in executing their part of the contract, the vendees ■could not be placed in a position where they, or any one on their behalf, could call upon them to perform.. For the want ■of such concurrent action on their part, the purchasers were unable to procure a good title at the stipulated time, although they were ready, and offered to perform on their part. The widow and heir-at-law assumed a hostile attitude towards each other, and not only failed and neglected to offer the requisite title on the due day, or at any other time, but the heir persistently refused to recognize the validity of the agreement into which his father had entered. Conceding that on the <day the bill was filed, Reddish and Ohlen should have ac
The inability of the purchasers to obtain a conveyance, was not removed until the final decree of the Court of Chancery was rendered, in April, 1875, during all which time the heir-at-law strenuously resisted the right of the purchasers to a conveyance. It is manifestly, therefore, not a question whether the purchasers were, in equity, bound to accept a title, and perform on their part on the day the bill was filed, because they could not have acquired a good title at that time, or at any other time, before the rendition of the final decree in the court below. If they had offered to consummate the contract on the day the bill was filed, or at any time before final decree, their offer would not have been accepted. It is not equitable, therefore, to regard the filing of the bill as the offer of a deed, because the parties who should have conveyed would not do so on that day, or at any time before, and equity could not compel a conveyance until the case was ripe for final decree. The filing of the bill did not enable the purchasers to obtain possession of the land, nor give them any control whatever over it, for the purposes of the plan which they had adopted to dispose of it. For any useful purpose whatever, it was wholly unavailable, and absolutely beyond their reach. The filing of the bill cannot be regarded, in any just sense,, as an offer to make the title; on the contrary, one of the principal questions at issue in the litigation was, whether the purchasers were entitled to have a conveyance, and until that was judicially
The decree required Reddish and Ohlen to pay interest on the cash portion of the purchase money from the time of filing the bill, and on the residue thereof at the expiration of six months from that date, the possession of the premises having been in the heir-at-law during the entire period of the litigation.
In King v. Ruckman, 9 C. E. Green 556, it was held by this court that when a vendor refuses to convey real estate according to his agreement, and keeps the vendee out of possession, and the rents and profits are less than the interest on the purchase money, the vendor will not be allowed such interest; under such circumstances, the vendee will not be required to pay interest on the purchase money. The circumstances of this case bring it fairly within this rule, and the decree, so far, at least, as it requires the payment of interest, is erroneous. The purchasers, therefore, upon the rendition of the decree, were not bound to accede to it and accept a conveyance upon such terms. It thus appears that from the time the contract was entered into until the present day, it has not been in the power of the purchasers to procure a proper title upon terms to which they should be held, and the case therefore resolves itself into the question whether they should be compelled to accept a conveyance tendered now for the first time.
Since the bill in this case was filed, there has been so much depreciation in the value of real estate, that it is quite clear that a heavy loss would fall upon the vendees if they are required to take the property now. After the lapse of so much time, it would not be equitable to impose such burden upon them, unless they have caused, or, at least, materially contributed to the delay which has ensued. It is said that although they tendered the purchase money and demanded a conveyance, they did not expect their tender would be accepted, and did not really desire that it should be; but the law did not require them to be anxious for the execution of
The parties adverse to them occupy a different position. The heir-at-law, on the day the deed was to be delivered, refused to execute it, except upon inadmissible terms; the widow voluntarily absented herself, and did not offer to join in the conveyance, and the administrator contented himself with giving notice to the purchasers not to pay the purchase money to the heir-at-law. Without further action on the part of either of the three, they resorted to a bill in equity to settle their own quarrels, and, after three years of strife, they seek to compel the purchasers to take what, hitherto, they had never offered, and had been wholly unable to give them, by reason of their own want of harmony. This- cannot be done without imposing upon innocent purchasers the entire loss occasioned by the willful misconduct of the heir, and giving to him an advantage from his own wrong.
The apparent equity in favor of the widow to have the lands treated as personal estate as between herself and the heir, undoubtedly impelled the Chancellor to make the decree appealed from. Its error lies in the fact that it makes the
The widow has died pending these proceedings. Whether her representatives have any remedy against the heir-at-law is a question which I have not examined, and upon which this court intimates no opinion. But in order that they may have an opportunity of raising that question by filing a cross-bill, or by such other proceeding as they are advised is material, I am of opinion that the decree of the Chancellor should be reversed, with costs in this court and in the court below, and the bill dismissed only as to the defendants Hoyt, Reddish, and Ohlen, and retained as to the other defendants.
Decree unanimously reversed.