141 A. 753 | N.J. | 1928
The points at issue are stated in the opinion of the vice-chancellor, and are repeated here only so far as incidental to the discussion. *544
A decree for specific performance was refused the vendor, because the vice-chancellor considered that the facts disclosed by the testimony showed a doubt as to the title to a "strip" which in his opinion would affect its marketability.
The "strip" in question is obviously the meandering one marked on the map "Reserved," and through which runs a small stream, which in time of flood would be enlarged.
We are not concerned with the whole strip, but only with some two inches of it adjoining on the southwest the lands described in the contract. The title to those lands is admittedly good, but the additional two inches were needed because of a slight mislocation of the building standing on them, which brought it over the line into the strip marked "Reserved." The "doubt" in the vice-chancellor's mind was whether because of the word "Reserved" on the map, or because of the physical existence of the brook, there might be some public or private easement in the "Reserved" strip, including the two inches, which would make trouble in the future for the vendee and his heirs and assigns; relying chiefly on Doutney v. Lambie,
We do not think that any such doubt exists in this case, as was present in the case cited. The question there was as to the encroachment of the main front line of an apartment house over the street line of Park avenue, in New York City. As to such encroachment, a substantial question of fact was presented in that case.
As to the effect of the word "Reserved," we think no reasonable doubt exists. It appears only on the map; the evidence of title examiners shows that no mention of it has ever been made in any deed prior to complainant's title. As to indicating any dedication, its natural meaning is precisely the opposite, and this was so held by the late Vice-Chancellor Pitney inCleveland v. Bergen Building and Improvement Co.,55 Atl. Rep. 117, 119, not officially reported. If it be taken to mean "reserved from sale," such reservation confers no rights on purchasers to object to such sale if the owner of the tract subsequently changes his mind. *545
Taking the brook as a physical fact, it is undisputed that it flows through the reserved strip, and that flowage should normally continue unless lawfully diverted. But it is likewise undisputed that the brook requires only part of the strip, that at the point in question it runs between retaining walls which have been in place for a number of years, and that the nearer retaining wall is seven feet away from the two-inch strip whose title is challenged. So that beyond a reasonable doubt, as we view the matter, the two-inch strip is free from any claim of servitude to an easement of drainage through the brook in favor of the public or neighboring owners.
This disposes of the principal questions raised in the case. The point that the complainant had not a good title at the time stipulated for delivery of deed is fully met by what was said inLarkin v. Koether,
The point that the proof of a deed by a subscribing witness should state that the contents were made known to the grantor and that he thereupon acknowledged, c., is without substance. InGriffi. L.R. (1821 — at p. 1210), proof by a subscribing witness is set out in this form:
"New Jersey, ____ County, to wit: On this ____ day of ____ anno domini ____ personally appeared before me O.P., one of the justices of the supreme court of the state aforesaid [or other officer, describing his office] E.F. and being by me duly sworn did depose that he saw A.B., the grantor in the within conveyance, sign, seal and deliver the same as his voluntary act and deed, and that the said deponent did subscribe his name as a witness thereto. Witness my hand. O.P."
Proofs have been taken in substantially this form from that day to this. In Den v. Gustin,
We conclude, that there was no substantial doubt about the validity of the title as finally tendered at the hearing, and therefore that the decree must be reversed with directions to award a decree of specific performance.
For affirmance — None.
For reversal — THE CHIEF-JUSTICE, TRENCHARD, PARKER, MINTURN, KALISCH, BLACK, KATZENBACH, CAMPBELL, LLOYD, WHITE, VAN BUSKIRK, McGLENNON, KAYS, HETFIELD, DEAR, JJ. 15.