BACKES, V. C.

Bill by the City of Newark against Stuart Lindsley for specific performance of contracts to convey land. Decree for defendant.

Jerome T. Congleton and William J. Kearns, both of Newark, for complainant.

John Francis Cahill and Herbert Boggs, both of Newark, for defendant.

BACKES, V. C. This bill is for the specific performance of contracts to convey lands. On January 14, 1919, the defendant, Liudsley, entered into two contracts with the city of Newark to convey to the city, by the one known as Exhibit A, nine tracts of meadow land on the Great Meadows at Newark west of the right of way of the Central Railroad, and any other lands owned by him west of said right of way within the port of Newark zone, at the rate of $750 per acre; and by the other, known as Exhibit B, seven tracts on the east side of said right of way, at the rate of $1,000 per acre. The city covenanted to pay the prices upon the delivery of the deed or deeds for the tracts, "to be approved by the law department of the city," on or before August 1st then next. One of the tracts was conveyed and paid for in May. On August 1st formal tender of deeds for the remaining 15 tracts was made, but the city was not ready—it had not searched the records nor satisfied itself of the titles. After much urging Lindsley reluctantly extended the time for one month, to September 2d, in writing. When that time arrived the city again was not ready, and for the same reasons, and it continued in this state of unreadiness, or unwillingness, to perform, until the filing of the original bill, June 8, 1920, wherein it prayed generally for a specific performance of the two contracts and for a conveyance of the land thereby agreed to be conveyed. By its amended bill, filed at the conclusion of its testimony, and to conform to its then conception of its aspirations, the city prays for the conveyance in fee simple of the first (Emery Johnson tract), second (Matthews-Day tract), and third (Matthews-Day tract) tracts of land of contract Exhibit A, and the undivided one-half interest in the third (Helen B. Wood tract) and the whole interest in the fourth (Kinney & Smith tract) tracts of land of contract Exhibit B:and also a transfer of the tax liens of Lindsley in and to the fourth, fifth, sixth, seventh, and ninth tracts of contract Exhibit A, and the first and second tracts of contract Exhibit B. The amended complaint alleges that the defendant Lindsley has only an undivided moiety in the third or Helen B. Wood tract of contract Exhibit B, which is denied by the defendant, he asserting that he owns the entire fee, and it also alleges that as to the tracts for which the complainant asks a transfer of the tax liens the defendant has only tax liens, because titles in fee have not been perfected in him by a strict compliance with the Martin Act, which is also denied, the defendant setting up that he has titles by virtue of deeds from the comptroller of Newark, duly authorized and executed according to law. It is not clear that Lindsley is not the owner in fee of the tracts upon which the city asserts he has only tax liens. His deeds from the comptroller of Newark, under the Martin Act (P. L. 1886, p. 140) purport to convey in fee simple. The issue of title was not tried out and presented for de cision, nor was the question of defendant's title to the whole of the Helen B. Wood tract. The case narrowed itself down to whether time was of the essence of the contracts, and whether Newark had lost its right to a specific performance as to the tracts of land it now selects, and is willing to take, by its failure to promptly perform, and whether, at all events, because of Newark's procrastination, repeated delays and unwillingness to perform, the defendant was justified in renouncing the contracts. In deciding these questions Newark is to be placed on a par with the individual contractor. The city was acting in its proprietary, not its governmental, capacity, and the conduct of its representatives is to be strictly imputed to it.

As a general rule, in equity, time is not deemed to be of the essence of the contract unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract; and so equity will enforce the specific performance of agreements after the time fixed for their performance has been suffered to pass by the party asking for the intervention of the court, unless the facts submitted show that the parties to the contract intended that time so fixed should be of its essence. Gerba v. Mitruske, 84 N. J. Eq. 141, 94 Atl. 34.

The defendant's titles are based on the Martin Act, precarious at the best, because an exquisite compliance with the statute is required (Burgin v. Rutherford, 56 N. J. Eq. 666, 38 Atl. 854), and as it was the stipulation that only those that would pass the careful scrutiny of the law department and receive its approval were to be conveyed and accepted, the date of performance was put off six months, to enable the city to search the records and satisfy itself of their sufficiency. It is obvious that the date of settlement was so long deferred for this single purpose, for Lindsley was as ready and able to perform forthwith as he was six months later. The department was to have its work completed by that time, and then to grant or withhold its approval. It did not start until two months after the contracts were made. The acceptance of the deeds was virtually optional with the complainant, and it seems to me it was clear to both parties, and their understanding, that the defendant's freedom of disposing of his lands elsewhere—and there were other bidders—was not to be tied up longer than the day fixed. The given period in which the option or judgment was to be exercised is a strong indication that time was of importance, and persuasive that time was essential is the extension of one month, solicitously sought and grudgingly given. Agens v. Koch, 74 N. J. Eq. 528, 70 Atl. 348. This forcibly brought home to the complainant the defendant's attitude, and is likewise an expression of the complainant's understanding and implied agreement that the defendant would be entitled to call a breach if it defaulted. It turned out as the defendant's experience had taught him, and as he prophesied it would when he granted the extension, that it meant only the beginning of interminable requests for further time. He was ready—Newark was not. His deeds were returned to him by his counsel, and he regarded the contracts at an end. Although repeatedly approached and urged to give further time, he resolutely refused, and his determination was well known to the law department. It is said by the corporation counsel and his assistant that they made overtures shortly before December, 1919, and that Lindsley tacitly consented to an indefinite extension if taxes about to accrue were not charged against him in the final settlement. I think they are confused in point of time. Lindsley and Cahill, his counsel, say that the occurrence was in August, when the written consent was executed, and I incline to this view the more because an extension was incompatible with Lindsley's entire course of conduct, and if his consent had been procured, counsel would have been quick to reduce it to writing, as they had been careful to do in August, and as they again attempted to repeat in October. At all events, the complainant has not borne the burden of proof on this sharp issue of fact.

And there was another cogent reason, known to the city, why Lindsley hesitated to extend the time to September 2d, and why thereafter he refused to listen to further importunity. When the contracts were entered into Lindsley was given his choice of accepting the price stipulated or submitting to condemnation proceedings, upon the representaHonby the city authorities that they would not pay to any other owner of meadow land similarly situated a greater price than was offered him. This promise was broken, the city having paid to at least one other at the rate of $1,500 per acre, and it also appears that the value of meadow land had vastly increased, the federal government having paid at the rate of $10,000 per acre for land, probably located at the water edge and the bulkhead line. If this digression on the part of the city was not an act of bad faith barring it from equitable relief, it was surely a powerful and sustaining factor in Lindsley's attitude of calling quits. I feel I could safely stop here and dismiss the bill. But the complainant presses matters in avoidance which, to my mind, only aggravated the situation.

After the complainant defaulted, September 2d, it continued searching the titles, and reporting to Cahill, defendant's counsel, its criticisms, and Cahill tried to meet them, and repeatedly, and until the middle of December, pressed for settlement. This is made much of by the complainant, as evincing that the time of performance was inconsequential, or, if it had been of the essence of the contracts, that it had been waived by the defendant. Counsel's conduct often binds the client, but in this instance the law department knew of counsel's limitations, and that Cahill had not the power to waive his client's right, nor to extend the time, for, in October, the assistant corporation counsel especially requested him to get his client's written consent, which he was unable to do. Lindsley was innocent of these doings, and Cahill kept him in ignorance, hoping to eventually persuade him into a settlement, in which he (Cahill) had not an unimportant financial Interest. And the law department was not oblivious. It was not misled. It banked upon the psychological moment, but Lindsley was obdurate. In Cahill's letter of January 9, 1920, to the corporation counsel, Lindsley's position—all along well known to the lawyers—was outlined. The letter was of Cahill's initiation, but its inspiration was born of Lindsley's resolution that the contracts were abrogated, and so the law department felt, or feared, for it thereafter negotiated for a new price, which came to naught. And, further, when Lindsley, in unmistakable terms, repudiated the contracts, the complainant did not stand on its now asserted rights and strike back by a bill In equity to compel performance, but it halted, and awaited developments, and then, after five months of further vacillation, and without signifying its withdrawal of objections initially made to the titles, and which it now advances as an excuse for its default, commenced this suit. The city made numerous objections to the titles of the four tracts and the moiety in the fifth, the Helen B. Wood tract, which it now waives. I cannot look upon the objections other than as hypercritical and captious. They were, for instance: That there was no proof (a) that an owner in the chain of title, who died nearly 100 years ago, died intestate; (b) that a grantor of a deed made in 1902, purporting to be single, was in fact unmarried; (c) that there were no liens and defects adverse to the title of an owner who died in 1812; (d) that certain ladies who executed deeds a quarter of a century ago were unmarried; and (e) that another at that time was a widow; and other questions of the like, some that run back into the titles as far as 1755. The city insisted upon clearances, which counsel must have realized were unprocurable, and must have felt did not affect the titles, but they used them as excuses to hold up the consummation of the contracts, and not until Lindsley quit in disgust—in fact not until six months or more after, when they filed the bill—did they conclude to waive these technicalities. They were all matters extra the record that did not affect the titles. The titles were absolute. That is now admitted, and Newark is content. It should have been long ago. A bill for specific performance is addressed to the extraordinary jurisdiction of a court of equity, to be exercised according to its discretion. The general rule is that he who seeks performance of a contract for the conveyance of land must show himself ready, desirous, prompt and eager to perform the contract on his part. Therefore unreasonable delay in doing those acts which are to be done by him will justify and require a denial of relief. No rule respecting the length of the delay which will be fatal to relief can be laid down, for each case must depend on its peculiar circumstances. Meidling v. Trefz, 48 N. J. Eq. 638, 23 Atl. 824.

The complainant has forfeited its right to the aid of this court by its dilatory tactics and inexcusable delays, and for this additional reason relief will be denied, with costs.