Summary
In Clark v. Badgley, 105 N.J. Eq. 534, the plaintiff sought the recovery of $500, the down-money, paid under a real estate contract because of unmarketable title, and the impression of a lien upon the lands to secure the same.
Summary of this case from Richeimer v. FischbeinOpinion
Submitted May term, 1929.
Decided February 3d 1930.
1. The court of chancery has no jurisdiction to hear and determine a suit brought to recover the down-money paid by the buyer to the seller and expenses, under a real estate contract. The case of Bailey v. B. Holding Co., 104 N.J. Eq. 241 reaffirmed.
2. The fact, that the bill of complaint prays, that the amount found to be due be impressed upon the land, as a lien, does not give the court of chancery jurisdiction.
Messrs. Harley, Cox Walburg, for the defendants-appellants. Mr. Joseph Zemel, for the complainants-respondents.
The bill of complaint was filed in this case, in the court of chancery, to recover the sum of five hundred ($500) dollars, the down-money paid under a real estate contract, dated July 12th, 1928, covering premises known as No. 267 Amherst street, in the city of East Orange, and in addition thereto, the sum of one hundred forty-seven dollars and forty-one cents ($147.41); expenses incurred in examining the title. The bill also prays, that said sums, when found to be due, be impressed as a lien upon the lands and premises.
In the case of Bailey v. B. Holding Co., 104 N.J. Eq. 241, this court held, a suit to recover the deposit and search fees made by the buyer against the seller, under a written contract to sell land, is not cognizable by the court of chancery. The court of chancery is without jurisdiction to hear and determine the controversy. The question litigated is a pure legal question, viz., the breach of a contract cognizable by the common law courts. That case controls this controversy.
The learned vice-chancellor, who heard the case and advised the decree appealed from, points out that the prayer in the bill of complaint for a lien on the land marks a legal distinction between that case, and the case under discussion. But this is not so. It is a distinction without a legal or substantal difference. The fact that the court of chancery is asked to declare a lien on the land does not differentiate the case in a legal aspect, from the cited case. The judgments of the common law courts are liens upon lands. The court of chancery could be given jurisdiction in any contract case by simply praying for a lien. This is manifestly unsound.
The decree of the court of chancery is reversed, on the ground that the court had no jurisdiction to hear and determine the controversy. For affirmance — None.
For reversal — THE CHIEF-JUSTICE, PARKER, KALISCH, BLACK, CAMPBELL, LLOYD, CASE, BODINE, VAN BUSKIRK, MCGLENNON, KAYS, HETFIELD, DEAR, JJ. 13.