100 N.J. Eq. 156 | N.J. Ct. of Ch. | 1926
On November 24th, 1925, defendants contracted to sell to complainant premises in Newark known as 50 Jones street. The contract contained the following clause: "The buildings upon the said premises are all within the boundary lines of the property as described in the deed therefor herein, and there are no encroachments thereon." On January 28th, 1926, complainant informed defendants that it would rescind the contract on account of encroachments. Complainant filed a bill for rescission. Defendants counter-claimed for specific performance.
At the hearing complainant produced two surveyors, whose qualifications were admitted, who testified that the building on the premises encroaches on premises to the south. Defendants produced one surveyor, whose qualifications were admitted, who testified that there were no encroachments. *157
The question, therefore, is, Is this a marketable title, which defendants can compel complainant to take? In the case ofDoutney v. Lambie,
In the case of Herring v. Esposito,
In Pasternack v. Alter,
The learned vice-chancellor (at p. 379) quoted as follows from the case of Van Riper v. Wickersham,
See, also, Goldstein v. Ehrlick,
Applying the law as above cited to the facts in the present case, we find that two surveyors say there are encroachments, and one says there are none. The weight of the evidence is therefore in favor of the existence of the encroachments. Moreover, there is clearly such a doubt in the matter as under the cases makes the title unmarketable.
I will advise a decree denying the prayer for specific performance and allowing the prayer for rescission with a return of the deposit and such reasonable search and survey fees as complainant may have expended.