2 N.J. Eq. 422 | New York Court of Chancery | 1841
By the act incorporating the Elizabeth-Town and Somerville railroad company, the president and directors of the company are authorized to lay out and construct a railroad from Elizabeth-Town to Somerville, and by a supplement to the original act they may extend file road to the Delaware river. For this purpose, liberty is given to them, their agents and others in their employ, at all times to enter upon any
The defendants have answered this bill, and have further obtained an order allowing both parties (o take affidavits, and the motion to dissolve the injunction has been fully heard upon the answer and affidavits. The case made by the defendants may be thus shortly stated. Martha Ross, the widow, being in possession, the company supposed she alone had the right to the property, and they went on under their charter, got commissioners appointed, who awarded to her thirteen hundred dollars, the entire damages to the propeity, and which they have paid to her and taken her receipt. That the commissioners have assessed the damages under the belief that Mrs. Ross had a fee in the lands, and that the officers and directors acted under that impression, cannot be doubted, for they all so positively swear. The company, then, have gone on in good faith, and obtained, as they supposed, in legal form, the right to lay their road on the land in question.
It is not contended that the company have a right to take land for the road upon a settlement with the party holding the present interest. Such a construction would be opposed to the intent and object of the provision, which designs nothing more nor less than that the land to be occupied by the line of the road shall first be paid for, and to those who have rights in the same.
The only serious question raised- by the defendants, is, that these complainants, who are the children of Martha Ross, and' several of whom have acted for her in obtaining damages from the company, stood by and saw the company go on blindfold,under a conviction that their mother had the estate in fee, and that after- having thus acted and concealed their title, they have-forfeited all claim to the equitable interference- of the court. A number- of cases were cited, establishing beyond question the-doctrine,- not merely that the court will refuse its aid to a party who fraudulently misrepresents his title, but if he observes a silence when duty and candor and fair dealing require him to speak out. The case in 2 Atkyns, 49, was of this character.There the mortgagee stood by and saw the lands agreed to be settled by the mortgagor to secure the terms of a marriage contract, and fraudulently concealed his mortgage r it was held that the land should be held against the mortgagee and his heirs. So-in 2 Atkyns 83, where a person having title to land suffered another to>go on and erect buildings upon it under a mistake, without informing him- of his error, and when he knew he was doing so under a mistake, it was decided that the land should be held without disturbance from this title. The doctrine is fairly stated, and the cases referred to, in 1 John. Chan. 354. The
On the part of the defendants, as well by the answer as by the affidavits of the officers and directors, it is manifest that the company have acted under a total misapprehension as to the true state of things respecting this land. "They supposed Martha Ross was the owner in fee, and accordingly treated with her in that, right. The commissioners certainly made their award under that idea, and the complainants, or some of them, acted as the agent of their mother, and advised in all her proceedings. The affidavits of those who acted on the part of the company, are explicit that they acted throughout under this mistake, ¡aofi >thcy deny having received any information to the -contrary. If
Without being able to harmonize this evidence, and without meaning to say which is right and which is wrong, I cannot feel myself at liberty to reject all this testimony, and to declare that the complainants have concealed the situation in which this property stands, so as to forfeit their claim to the aid of this court. There is too much affirmative .evidence to justify me in such a
The complainants, then, in my view of this case, are entitled to have their damages paid or tendered, before the defendants can lawfully take possession of the land, unless it be shown that they have been guilty of a fraud in concealing their title; the evidence not being satisfactory on that point, I do not feel myself at liberty to dissolve the injunction.
There is one fact that should be referred to, and that is, that the complainants delayed giving a written notice of their claim until their mother had been paid, and then promptly served one. This has a bad appearance, and can only be excused on the ground that, until that took place, they were in no danger that the company would enter upon the land. This part of the case must still depend on the question already decided, whether the complainants practised a fraud by concealing their title.
Motion to dissolve the injunction denied. Costs to abide the event.