61 A.2d 252 | N.J. | 1948
This appeal brings up for review a judgment in favor of the defendant below and respondent here, entered pursuant to an order striking the complaint as sham.
The plaintiffs, Morris Shapiro and Sadie Shapiro, contracted in writing to convey a fee-simple in certain lands in Netcong, Morris County, by bargain and sale deed, to Egnazio *677 Carrubba. The agreed consideration was $4,000; $200 to be paid upon the signing of the agreement; $300 on a day certain thereafter and the balance of $3,500 partly in installments and partly by purchase-money mortgage. The agreement further provided that Carrubba might, commencing upon the date that the contract was signed, enter upon the lands and take the rents, issues and profits therefrom. Pursuant thereto, he took possession. Subsequently, a title search disclosed that the plaintiffs could not deliver a fee-simple since their interest amounted only to a life estate. Thereupon the defendant made no further payments under the contract and refused to execute the purchase-money mortgage called for or to accept a deed. Additionally, the defendant asserts that he is entitled to remain in possession of the property. In this situation, the plaintiffs instituted a suit in ejectment and on a motion to strike the complaint as sham, the order was entered on which the judgment under review is founded.
The question of substantive law involved is whether a vendee in possession of lands under a contract to purchase who has refused to pay the balance of the purchase price because of a defect in the vendor's title, may continue in possession of the land. InWheaton v. Collins,
For the reasons stated above, the judgment under review is reversed, with costs.
For affirmance — WACHENFELD, EASTWOOD, DILL, JJ. 3.
For reversal — THE CHANCELLOR, CHIEF JUSTICE, BODINE, DONGES, HEHER, COLIE, BURLING, JACOBS, WELLS, FREUND, McLEAN, SCHETTINO, JJ. 12. *679