Summary
In Brown v. Pinniger, 81 N.J. Eq. 229, the vendor at the time she entered into a contract to convey the fee, was possessed of an estate in dower only, but she subsequently acquired the fee and it was held that having situated herself so that she could, if willing, carry out the terms of the contract, specific performance should be decreed.
Summary of this case from Nelson v. American Trust Co.Opinion
03-27-1913
BROWN v. PINNIGER.
Durand, Ivins & Carton, of Asbury Park, for demurrant. Johnston & Conover, of Asbury Park, for complainant.
Action by John R. Brown against Agnes H. Pinniger. On demurrer to complaint. Demurrer overruled.
Durand, Ivins & Carton, of Asbury Park, for demurrant.
Johnston & Conover, of Asbury Park, for complainant.
WALKER, Ch. This cause is presented on a demurrer to a bill for a specific performance of a parol agreement for the sale of land. The bill of complaint alleges that Charles N. Pinniger died intestate, seised of the land which is the subject of this suit, located at Belmar, N. J. It was part of a larger tract of land which he owned at the time of his death. He left surviving him the defendant, his widow, and Henry C. Pinniger, a son, who died in infancy. Before the latter's death, the complainant, through a real estate agent representing the defendant, submitted to her an offer to buy the land and to pay therefor the sum of $50, provided the defendant would consent to the opening of a street in front of the lot and across adjoining lands, and would donate land sufficient for the street and authorize the complainant to do the work of laying it out. The defendant accepted the offer, and thereupon the complainant paid to the agent the full purchase price, which, or the benefit of which, the defendant received and retained. The agent gave to the complainant a receipt for the money, which reads as follows: "Received from John R. Brown, fifty and 00/100 dollars, for purchase money, for triangular plot of ground of Mrs. A. H. Pinniger, on the south side of 13th Ave. near F street, the same to be conveyed free and clear." Immediately after concluding the bargain and paying the purchase price, the complainant, in consequence of the agreement and with the defendant's consent, enteredinto possession of the land, laid out a street in front of it, and erected a dwelling house thereon and on other lands adjacent belonging to the complainant. He has been in possession ever since. After the making of the agreement, the son, Henry N. C. Pinniger, died, and the inheritance went to his mother for life, with remainder to his aunt, his father's sister. Descent Act, Comp. Stat, p. 1919, § 4. See, also, Hickey v. Morrissey, 50 Atl. 183. The aunt then conveyed the premises to the defendant, who is now the owner thereof in fee simple. The prayer of the bill is that the defendant be decreed to convey to the complainant the land in compliance with her agreement.
The assigned causes of demurrer are: (a) Want of equity; (b) that there is no contract; (c) the contract is within the statute of frauds and perjuries; (d) the complainant's possession was acquired under an unenforceable contract and without the knowledge and consent of the defendant; (e) the complainant did not lawfully acquire possession and is not now in possession; (f) the possession is not sufficient to take the contract out of the statute of frauds; (g) the conduct of the complainant is inequitable.
In the argument the counsel of the demurrant relied upon Schenck v. Spring Lake Beach Improvement Co., 47 N. J. Eq. 44, 19 Atl. 881, Clement v. Young-McShea Amusement Co., 70 N. J. Eq. 677, 67 Atl. 82, 118 Am. St. Rep. 747, and Stengel v. Sergeant, 74 N. J. Eq. 20, 68 Atl. 1106, to sustain his contention. The counsel's argument is predicated upon the proposition that the bill counts solely upon the writing of the real estate agent acknowledging the payment of the consideration price, as the contract sought to be enforced. If the contract between the parties were circumscribed by and inclusive of the receipt signed by Hudnut, the agent, as counsel insists it is, I might concede that the doctrine of the cases cited was apposite. But I do not read the bill in so restricted a sense. Its purport, although somewhat obscurely stated, is that the defendant (not Hudnut, her agent) agreed to sell to the complainant the premises for $50; that the consideration price was paid to the agent and appropriated by the defendant; that the agent gave a receipt for the money, whereupon the complainant, in pursuance of the contract and by the permission of the defendant, went into possession of the lands, which he has ever since held and upon which he has made substantial improvements.
The complainant's right to relief is founded upon a parol agreement of sale, accompanied by a complete performance on his part and part performance by the defendant. The written acknowledgment of the payment of the purchase price is not the contract, but merely some evidence of it. Under these circumstances the statute of frauds is of no avail as a bar.
It has been repeatedly held by the courts of this state that taking possession of the premises under a parol agreement for their conveyance is such part performance as will take the case out of the statute of frauds and support the suit on the agreement. Green v. Richards, 23 N. J. Eq. 32; Cramer v. Mooney, 59 N. J. Eq. 164, 44 Atl. 625; Krah v. Wassmer et al., 75 N. J. Eq. 109, 71 Atl. 404, affirmed in 78 N. J. Eq. 305, 81 Atl. 1133. Much stronger must be the position of an equitable vendee, when it appears, as it does in this ease, that the full consideration price has been paid.
It is further urged by the demurrant that, at the time the defendant made the contract to convey the fee, she was possessed only of an estate in dower in the lands, and that the entry into possession by the complainant thereunder was not such a part performance as to take the agreement out of the statute. The answer to this is that the complainant entered into possession of the land in pursuance of the defendant's contract of sale, and not in virtue of her supposed freehold estate. So far as she was concerned, it was a lawful entry and possession. The subsequent acquisition by the defendant of the fee in the premises accrued to the complainant, and enlarged his right of possession, and this having been acquiesced in by the defendant, and she having situated herself so that she could, if willing, carry out the terms of her contract, a court of equity will decree a specific performance. Fry on Spec. Perf. of Contracts, § 1344.
The demurrer will be overruled, with costs.