| N.J. | Nov 15, 1880
The opinion of the court was delivered by
In examining this case, the first question which presents itself is in reference to the validity of the title of the complainant to the lands at Tappan which she, by this bill, seeks-to force on the defendant against his will. This is the consideration which gives value to the contract; if it fails there is no mutuality in the agreement, and it should not be enforced. This title is based on a conveyance from Isaac H. Bartow and wife to Abraham Van Wart, dated April 5th, 1871. The property described in the deed is that designated in the agreement to be conveyed to the defendant. Isaac H. Bartow obtained this property from John R. Verbryck, by deed dated May 1st, 1849. It is said that the description contained in this deed does not cover the northern part of the lot of land and premises to be conveyed, and there is a small gore of land on the southerly side which is omitted. There is an apparent error in the boundaries of the latter deed, but Bartow and Van Wart have had undisturbed and undisputed possession of the entire lands, as owners, since 1849, and no adverse claim of title is shown. This objection cannot, therefore, prevail.
It also appears, by the agreement, that the property at Tappan was to be conveyed to the defendant, Tillotson, subject to a mortgage of $4,000. During the controversy between these parties, this mortgage has been foreclosed and the premises sold, and bought in by the mortgagee, but the complainant, in the bill of complaint, offers specifically to perform the agreement in all things on her part, which includes the obtaining of this title and the conveyance of the lands with no greater encumbrance thereon than was stipulated for, and subject to the decree of the court. The defendant will therefore be amply protected from a conveyance of his lands until a proper assurance of the title of the com
Another objection made is, that the complainant, Mary Ann Gesner, held the title by a voluntary conveyance from her son-in-law, Abraham Van Wart, which was made to defraud his creditors, and is voidable by them. The search for title made by the defendant’s attorney, after the agreement for exchange had been executed, and after the parties had taken possession of the respective properties under their contract, showed these facts— that a judgment of the supreme court of the state of New York was rendered March 8th, 1875, at the suit of Margaret Mann, administratrix &c., against Abraham Van’Wart and Matilda, his wife, for the foreclosure and sale of mortgaged premises, not named in this agreement, and against Abraham Van Wart for any deficiency that might arise; that, April 29th, 1875, a judgment was obtained in the supreme court of the state of New York, and docketed in Rockland county, in favor of Margaret Mann, administratrix &c., against Abraham Van Wart, for $1,308.45, the deficiency above named. On April 22d, 1875, seven days before this judgment for deficiency was obtained, Van Wart conveyed this property at Tappan to the complainant, Mary Ann Gesner, his mother-in-law, for the consideration, therein expressed, of $1; and on April 29th, 1875, the day on which the judgment was rendered against him, the complainant conveyed the premises to Matilda Van Wart, wife of Abraham Van Wart, for the consideration, therein expressed, of $1. These deeds were evidently voluntary conveyances, by which the title to these lands was changed from Van Wart to his wife, at the very time of the recovery of the judgment for deficiency against him. The judgment was not a legal lien on the land, because, on the day it was recovered, the conveyance had been made to Mrs. Van Wart, the defendant’s wife, but if the deeds were made to defraud creditors they were voidable by them, and if the defendant, Tillotson, took title after his searches had disclosed these facts, he would be charged with notice of the fraud, if it existed, and his title could also be assailed by the creditors of Van Wart. On August 31st, 1876, while the title thus stood in
It is apparent, from the testimony of the defendant and from the evidence of David Van Wart, an attorney, of New York, who acted for his brother, Abraham Van Wart, in the attempts that have been made to effect a settlement between these parties, and to pass the titles, and also from the statements made by Abraham Van Wart, that the defendant’s attorney did, at their first meeting after the contract was signed, and at the time appointed for exchange of titles, object to the existence of this judgment. Different projects have been suggested for settlement, but there has been no waiver or release of this objection to the title.
Although the deeds from Abraham Van Wart to Mrs. Gesner, and from her to Mrs. Van Wart, contain only a nominal consideration of $1, there has been offered in evidence a mortgage given by Abraham Van Wart to George M. Gesner, husband of Mary Ann Gesner, on the Tappan property, dated August 24th, 1871, which, it is said, was part of the consideration of the deed from Van Wart to Mrs. Gesner; and that the deed from Mrs. Gesner to Mrs. Van Wart was given to take effect at the mother’s death, instead of a will. The amount is not given in the memorandum of exhibits in possession of the court, but it is not important. George M. Gesner was living, and it does not appear how his wife became the owner of this mortgage, which has never been recorded, nor has any assignment thereof to her been shown. The allegation that this mortgage entered into the consideration of the deed to Mrs. Gesner is thus stated by David "Van Wart in his testimony, and this is the only evidence by any witness on this subject:
“I think the main question, primarily, was the good faith and validity of the conveyance from Abraham Yan Wart to Mrs. Gesner; it was then stated that the cancellation and surrender of that mortgage was, in truth and fact, part of the consideration of that conveyance.”
Nothing more particular is given about this mortgage, or
It is the duty of the court to see that the objections to the title are not frivolous, or intended only to delay and embarrass the complainant; and such objections should not be treated so seriously as to be received as excuses for the non-performance of a contract. But, on the other hand, a court of equity will not compel a party to take and pay for an estate of which only an imperfect title can be given. The distinction is also to be made between the case where the apparent defect in the vendor’s title is such an one as may be expected to be removed on a reference consistently with equity practice, and that where the court will not allow the complainant, seeking a specific performance, to make up a case in this way, but will only dismiss his bill without prejudice to a new bill. Blatchford v. Kirkpatrick, 6 Beav. 232; Clay v. Rufford, 19 Eng. L. & E. 350; Girrer v. Bastaid, 2 Phil. 619; 1 De G. M. & G. 69. The true rule is stated in 3 Pars. on Con. (6th ed.) *380, that if the character of the title be doubtful, although the court were able to come to the conclusion that, on the whole, a title could be made that would not
"Where there is a conveyance of land, voluntary on its face, made by a defendant in a suit, just before a judgment for a large sum is rendered against him, which judgment would be a lien on the land if such conveyance had not been made, and the evidence fails to show, by strong proof, that it was made bona fide and for a valuable consideration, a. case is made for the application of the rule above stated, and the specific performance of an agreement for the purchase of the land will not be enforced.
Although the question of the sufficiency of the title often arises after the reference of title to a master has been made, yet the bill may be dismissed at the hearing, if the defect in title has been prominently put forward in the pleadings and proofs, and the court can then decide the question. Fry on Spec. Perf. eh. xvii, *853. This case, on the proof before us, looks like an attempt to impose a hard bargain and a suspicious title on an old man seventy-six years of age, and is not entitled to the favorable consideration of a court of equity on bill for specific performance.
Decree unanimously reversed.