90 N.J. Eq. 11 | New York Court of Chancery | 1918
This is a bill for the specific performance of a contract to convey land. The defence is defective title. The title stands thus: Emily J. Smith, by deed, in form a warranty deed, conveyed the land in question to James N. Wright to secure a loan of $1,050. He gave her an agreement of defeasance. Her husband, Thomas, was not a party io the deed but he. subscribed it. Not being a party to it, the deed did not convey his right of curtesy (Jason v. Johnson, 74 N. J. Law 530), and did not vest in the grantee more than an equitable interest. By bill of strict foreclosure, Wright sought to foreclose the interest of the heirs of the grantor, she being dead, and of her husband and certain of her husband’s creditors. Following a decree pro confesso, there was a decree “that the deed and agreement of defeasance be decreed to be a mortgage upon the land and premises described therein,” and there was a reference to a master to ascertain the amount due. The final order was “that the defendants do from henceforth stand absolutely debarred and foreclosed of and from all equity of redemption of, in and to the said mortgaged premises.”
The objections to the decree for specific performance are: (1) That Mr. Wright cannot convey the legal as distinct from the equitable title, and (2) that the estate by the curtesy of Thomas
In the second place, there is nothing to indicate that Mr. Smith has lost his curtesy. It is self-evident that he did not part with it by deed, because he did not make a deed. Counsel’s contention that the effect of the strict foreclosure was to deprive him of it, is based and based only on the opening paragraph of the bill praying strict foreclosure. The allegation, contrary to the admitted fact, is as follows: “That Emily J. Smith being indebted to your orator (James N. AVright) in the sum of $1,050 with her husband, Thomas G. Smith, conveyed by warranty deed,” &c. This allegation, counsel argues, was admitted when Smith permitted a decree pro confesso to be taken against him. It was, undoubtedly, admitted for the purposes of that suit, and had it been decreed therein that Smith had conveyed, the decree would have bound him, although founded on an erroneous conception of the evidence and of the law. But the chancellor made no such decree. He only decreed strict foreclosure of such equity of redemption as the several defendants had: Smith had no equity of redemption; he had a curtesy. There is therefore no decree to operate by wav of estoppel. Is, then, the allegation, in itself, an estoppel in a subsequent and independent proceeding, not because Smith himself made the admission, but because he allowed the foreclosure bill to be taken as confessed against him? The case is at best one of implied admission— prima facie proof — but an admission which an inspection of the
Eor these reasons I think that defendant cannot be compelled to take the title.