Opinion
11-04-1893
CHAMPION v. GENIN et al.
John S. Applegate, for complainant. Gilbert Collins, for defendants.
(Syllabus by the Court.)
Bill by Ezra R. Champion against Theresa J. Genin and others for the specific performance of a contract to convey land. Heard on demurrer to the bill. Demurrer sustained in part.
John S. Applegate, for complainant.
Gilbert Collins, for defendants.
McGILL, C. The allegations of the bill show that the defendant Theresa J. Genin was seised of a lot of land at Atlantic Highlands, adjoining the easterly side of land belonging to the Pavonia Yacht Club, which lot is 50 feet wide, fronts on Bay View avenue, and runs from that avenue to the waters of Sandy Hook bay, and, being so seised, on the 5th of October, 1892, agreed to sell it to the complainant, by a memorandum in writing, of which the following is a copy: "Atlantic Highlands, N. J., Oct. 5th, 1892. Rec'd of E. R. Champion $20.00, part payment on lot adjoining Pavonia Yacht Club, on Bay View Ave., Atlantic Highlands, N. J. Terms to be $2,500.00. Int. to begin on same from Nov. 25, and $1,000 to be paid in less than one year, after which Bal., $1,500.00, can lay on first mortgage. Theresa J. Genin. Witness: Clara E. Champion." But they do not show that the defendant Theresa J. Genin was not the owner of another lot which might be embraced by the memorandum's description of the land to be conveyed. It is further alleged that after making the memorandum the defendant Genin sold and conveyed her lot upon the east of the yacht club land to certain individuals, named, as trustees for the yacht club, and that those individuals took that conveyancewith full notice of the memorandum of agreement for sale to the complainant. Those individuals are made parties defendant, but the Pavonia Yacht Club has not been made a party. It does not appear that the yacht club is a corporation. Two of the defendants demur to the bill—First, because the memorandum fails to definitely describe the lands contemplated in it; and, second, because the Pavonia Yacht Club has not been made a party defendant.
I think that the first of these grounds is well taken. The bill fails to show that the defendant Genin is not the owner of more than one lot which will answer the description in the memorandum. For aught that appears to the contrary, she may be the owner of a lot upon the west of the club, as well as the lot upon the east. Under such circumstances, the memorandum's description of the land to be conveyed is too indefinite. Where the defendant is the owner of a single lot which will answer the description, that fact may be shown by parol evidence, and the presumption will arise that such lot was intended to be described. Hurley v. Brown, 98 Mass. 545; Scanlan v. Geddes, 112 Mass. 15; Mead v. Parker, 115 Mass. 413. But, if he be the owner of more than one lot which will answer it, the description will be held to be too indefinite. Doherty v. Hill, 144 Mass. 465, 11 N. E. Rep. 581. The words, "lot adjoining Pavonia Yacht Club," etc., on their face, show that they are applicable either to one piece of property, or to more than one piece of property. If the fact is that they apply to only one piece, the memorandum will identify the land; otherwise, it will fail to do so. To clear away doubt and uncertainty, the precise condition of the fact in this respect becomes material. A bill should aver every fact that must be proved to exhibit the complainant's right to relief, (Story, Eq. Pl. § 257;) and therefore, because, in the present case, the bill fails to allege the circumstance which will make definite the description in the memorandum, to wit that the defendant Genin is the owner of only one lot to which that description will apply, it is bad upon demurrer.
The second ground of demurrer is not well taken. It does not appear that the yacht club is a corporation. The natural inference to be drawn from the fact that a deed was made to individuals, as trustees for the club, is that the club is a voluntary association of a large number of members, for whom, for convenience, a few act as trustees; and hence, under the allegations of the bill, the best that defendants could ask is that all the members of the club be brought in as parties defendant. But that is not the objection now made by the demurrants, and need not be considered. Upon the first ground, I will sustain the demurrer, with costs. The bill may be amended, if that which I state as a material fact exists, and the complainant applies for leave to amend.