Opinion
05-15-1903
CLEVELAND v. BERGEN BLDG. & IMP. CO. et al.
Charles L. Corbin and George S. Hobart, for complainant. Samuel C. Mount, for defendants.
Bill by Charlotte A. Cleveland against the Bergen Building & Improvement Companyand others. Final hearing on bill, answer and cross-bill, and replication and proofs, Decree for complainant.
Charles L. Corbin and George S. Hobart, for complainant.
Samuel C. Mount, for defendants.
PITNEY, V. C. This bill is filed by Mrs. Charlotte A. Cleveland against the Bergen Building & Improvement Company and others, having for its object to relieve the complainant from the binding effect of a contract in writing entered into between the parties on or about the 14th of August, 1809. The answer of defendant resists this claim, and by a cross-bill seeks to enforce the specific performance of the contract. The contract was made between the defendant the Bergen Building & Improvement Company of the first part, Reta R. Quackenbush of the second part, and the complainant of the third part. By its terms the defendant corporation agreed to convey to the complainant, and the complainant agreed to purchase and pay for, certain building lots situate in the borough of Hasbrouck Heights, county of Bergen, at Euclid. It seems that Euclid was originally the name of the section of country afterwards incorporated as a municipality and called "Hasbrouck Heights." The descriptions found in the contract read in this wise: "In section A as shown on the map of Euclid filed in the Bergen County Clerk's office December 13, 1893, lots Nos. 38, etc.; in section C, block 1, as shown on the map of Euclid filed in the County Clerk's office September 27th, 1894; lots Nos. 5, 6, 7, 8, 9, etc.; in section C, block 2, as shown on the last mentioned map, lots 1, 2, 3, 4, etc.; in section C, block 2, as shown on the map of Euclid, not filed, lots 30, 31, 32, 33, 34, etc.; in section C, block 3, as shown on the map of Euclid, not filed, lots Nos. 2 to 32, both inclusive," etc. Then Mrs. Quackenbush on her part agreed to convey to the complainant, and complainant agreed to purchase and pay for, certain other blocks of building lots, all referring to one or the other of the maps above mentioned. The price of the whole was $17,000, and that price was, by a subsequent clause in the contract, divided between the corporation and Mrs. Quackenbush, in the proportion of $12,000 to the corporation and $5,000 to Mrs. Quackenbush. All of the lots agreed to be conveyed by Mrs. Quackenbush were heavily mortgaged, and also a large portion of those agreed to be conveyed by the defendant corporation, and the agreement provided that the complainant should pay the interest to accrue on the mortgages and assessments after a certain date, and a time was fixed for the payments and delivery of the conveyances, which at present I deem it not worth while to set out in full. Suffice it to say that, shortly after entering into the contract, Mrs. Quackenbush became embarrassed, and conveyed to the corporation defendant, by the consent of the complainant, the various lots which she had agreed to convey to the complainant, and received, directly or indirectly, from the complainant, in cash, all the purchase money coming to her under the contract, so that she may be laid out of the case, and the contest is entirely between the complainant and the defendant corporation, the land company.
The claim put forward by the complainant is that the defendant was never able to convey to her according to the contract, and she claims as a result that not only is she not bound to complete the transaction, but that she is entitled in equity to a lien upon the interests of the defendant in the premises for the amount of money—$4,300—which she has paid under the contract on account of the purchase money. The principal ground upon which the complainant bases her equity is this, namely, that the contract was made with reference to the maps mentioned in the contract as above stated, and that those maps all showed certain streets laid out, and the lots to be conveyed facing on them, and that as to one of these streets, to wit, Cleveland avenue, shown on those maps, there has been no dedication by the owner of the soil, at least over that part of it west of a street called "Summit Avenue," so that it was impossible for the complainant to get access to a considerable number of lots lying west of Summit avenue and facing on Cleveland avenue; that the title of the land company included only a small strip, varying from 2 to 15 feet wide, on the northerly side of that avenue, as laid down on the maps in question. It is admitted that the title of the land company was confined to such narrow strip, and that a large number of the lots to be conveyed, to wit, about GO, faced on Cleveland street, west of Summit avenue. The tract comprising the lots in question lies on the westerly side of the Improved portion of the borough of Hasbrouck Heights, and extends to the western boundary of the borough, and the maps referred to show all the land up to the western boundary. Divers streets and avenues cross it, laid down parallel to each other, and on a course of northwest and southeast, and two avenues cross those streets diagonally west of Summit street, which latter crosses them at right angles. Those two are named respectively "Grand Boulevard" and "Wood Street." It is admitted that the borough authorities have never in any wise accepted or recognized Cleveland avenue, west of Summit street, but have refused so to do.
In order to maintain her case the complainant must show that by the terms of the contract she was warranted in supposing that the streets mentioned on the map to which reference is made were either dedicated streets, or that they had been acquired by proceedings on the part of the municipal authorities for that purpose. On this proposition it was substantially conceded bycounsel for the defendant, and I think that it is not open to doubt, that, under the circumstances and the terms of the contract in question, the complainant was justified in believing that the streets were dedicated streets and open to the public. The maps in question, or copies of them, were shown to complainant's husband in connection with the preliminary negotiation which he conducted on her behalf, and in the actual compilation of the contract. The reference to the maps in the contract, which on their face do show all these streets, amounted to an assurance by the vendor that they were what they appeared to be, either actual public thoroughfares open to the travel by the public, or at least streets which the owners of the title to the laud comprised within their limits had dedicated to the public use. It is shown and admitted that the part of the land lying west of the Grand Boulevard is entirely unimproved, and particularly that part lying northwest of Wood street is simply woods, which have never been cut off or any street marked on it; between Wood street and Grand Boulevard avenue the streets, I believe, have been marked on the ground. At the time in question the property southwest of Cleveland avenue was owned by Messrs. Bentzen and Hill, who had taken title to it on or about the 1st of March, 1897. Their land extended from the extreme westerly boundary of the tract, and of the borough, nearly to Summit street. They laid it out in lots, and made and filed at that time a map showing Cleveland avenue and the line of their title, which line corresponded with the line of defendant's land, and marked on it next to the northeasterly side thereof and northeast of the center of Cleveland avenue, a strip about 10 feet wide, with the word "reserved." This, of course, shows that they did not by that map intend to dedicate that strip 10 feet wide on the northerly part of their tract. Parallel with Cleveland avenue, and further southwest, there is a street called "Harrison Avenue," also shown on the land company's map, which does not appear to have been opened. These streets are traversed, as we have seen, west of Summit street, by the boulevard and by Wood street, neither of which seem to have been opened south of Harrison street, and both of which are marked on Bentzen & Hill's map as "reserved" south of Harrison' street. So that, so far as the action of Bentzen & Hill goes, they positively refused to do anything to dedicate that small strip of land confessedly belonging to them, and lying immediately southwest of the land of the land company, and occupying a strip about 10 feet through the whole length of Cleveland avenue from uear Summit street across the boulevard and Wood street to the westerly end of the tract and the westerly boundary of the borough crossing the woods before mentioned. There is not a particle of evidence that any of the grantors of Bentzen & Hill ever did any act which can be properly construed as dedicating or tending to dedicate any of the lauds covered by the Bentzen & Hill conveyance. The deed to Bentzen & Hill was made by Mr. and Mrs. Gee on the 1st day of March, 1897. It mentions no streets whatever.
The land company, in order to sustain the dedication, relies upon what is called an "assessment map" of the borough of Hasbrouck Heights, which includes all these lands, and shows streets laid out over them substantially the same as those on the map of the land company and that of Bentzen & Hill. That map seems to have been filed in the Bergen county clerk's office in 1895, and to have been made by Mr. Dunham, civil engineer, of Plainfield. A copy was hung up in one of the offices of the borough, and is called the "assessment map." Who employed Mr. Dunham to make it, and why he extended the map and streets over the land here in question, does not appear. But it may be inferred that, as is often done in such cases, he, being employed by owners of lands lying to the northeast of the land here in question to lay them out in streets and lots, extended his work over these lands to the borough line of his own motion.
But reliance is placed by both parties on what occurred at the time of the negotiation of the contract. The complainant was represented entirely by her husband, Arthur J. Cleveland, who made the bargain. She knew nothing about it, except to sign the contract. He was not present at the hearing, being detained by illness in London, so that the complainant was obliged to rely upon his evidence taken by commission. Mrs. Quackenbush was represented by a Judge Laird, who during the trial was In Vermont, and his evidence was also taken by deposition. The defendant the land company was represented by Mr. Will H. Van Guilder, who was once the owner of the property, and was at the time of the contract the president of the corporation, but afterwards gave place to his wife, who was the principal stockholder; in fact, the whole stock was owned by the Van Guilder family. The map which was shown to the complainant's husband, acting as her agent, was entitled "Euclid. The property of Wm. H. Van Guilder & Co., Bergen County, N. J.," and was gotten up by that gentleman before it was conveyed to the defendant corporation, and, as before remarked, that map shows the boulevard and Wood street running substantially parallel with each other on a course a little east of north, and intersected by Passaic avenue, Springfield avenue, Columbus avenue, Cleveland avenue, and Harrison avenue, at acute angles, the latter streets being laid on a course of about northwest and southeast. Summit street, which seems to be nearly or quite the western limit ofactual Improvement, cuts the lastmentioned avenues at right angles, and is laid on a course just about northeast and southwest.
Now, Mr. Van Guilder, who was examined in open court, swears that he went out with Mr. Cleveland, looked the property over with a map before them, and on the ground, and says: "I made one little explanation to him, that Is, that the streets looked rough; I said to him, 'When you go out there' I says, 'those streets are not in very good condition; we have got no buildings, no improvements in there, with the exception of the streets, and they are in rough form.' I said, 'They have only been accepted as far as Summit street here; the rest of them have not been accepted; although they are on the borough map, they look rough.' I made that little excuse because they did look a little rough." And he swears that the southern boundary of his tract, running diagonally through the northerly side of Cleveland avenue, was marked on the ground by an old hedgerow of cedar trees.
Mr. Cleveland swears that when the contract was made he was given to understand that Cleveland avenue was a dedicated street, as shown on the map which was presented to him and had been prepared by the company.
Judge Laird swears that there was some talk about the streets. "Q. What streets? A. The streets shown on the map; all those pink maps, the Van Guilder maps. Mr. Winans or Mr. Van Guilder said the streets were dedicated up to one of the streets called 'Summit Street,' and that the others were only marked on this map. I think you [Mr. Van Guilder] said he could have all the streets the company owned in this deed free with the other property as far as your line extended."
Mr. Winans, the gentleman who drew the contract and attended to its execution, swears that there was talk about the streets west of Summit street not being dedicated, but he thinks it was some time after the contract was signed, and the other evidence in the case shows conclusively that such was the fact.
Taking the evidence of the three witnesses who speak on this subject, Mr. Van Guilder, Mr. Laird, and Mr. Cleveland, I am entirely satisfied that the verbal representations made to Mr. Cleveland were that, while the streets west of Summit street were dedicated, they had not been accepted by the city. It is probable that some of the parties did not clearly distinguish in their minds the different steps requisite in such case to make a public street, namely, first, the dedication by the owner, and, second, the acceptance by the public. In fact, afterward, a strong effort was made by Mr. Van Guilder to induce the town to take measures to open these streets. At his request Mr. Cleveland saw Messrs. Bentzen & Hill, or one of them, and obtained from them a price at which they would join in the dedication of Cleveland avenue, and induced them to offer to take $600 for that purpose, and reported that to Mr. Van Guilder, who refused to pay it, and said that he would compel the city to open it at their own expense. In this connection there is the fact that the Bentzen & Hill map was got out at or about the 1st of March, 1897, and printed by the hundred, and it is quite likely, although there is no proof on the subject, that Mr. Van Guilder, who was in the business of dealing in these building lots, saw it, and, if he did see it, he must have observed that a strip was reserved directly through the center of Cleveland avenue. There is no pretense that Mr. Cleveland, or any one who represented him, ever saw the Bentzen & Hill map until long after the contract was signed. My conclusion, then, is that, from an inspection of the Van Guilder map, shown to Cleveland at the time he was negotiating the contract on behalf of his wife, and while going on the ground, he was justified in believing that all the streets, including Cleveland avenue, laid down on the Van Guilder map, were dedicated streets—dedicated in such manner that the owner could not object to the opening of that by the public—and that the only step remaining in order to make them public streets was the acceptance and adoption of them by the borough authorities, and this had not been done up to the time of the hearing of the cause.
It is further perfectly clear, as before observed, that the owner of the principal part of the bed of Cleveland avenue had never dedicated it west of Summit street, and that Bentzen & Hill were entirely justified in reserving a part of it from dedication on their map.
Against that result, however, defendant sets up several conveyances made by Bentzen & Hill at or about the time their map was made. They took their title, as we have seen, on the 1st of March, 1897, and had their map made about the same time, and filed March 8, 1897; but it is fairly to be inferred that a contract of purchase had been made by them some time prior to that, for immediately after the perfection of their legal title they made several conveyances of lots, and those conveyances are relied upon as a dedication by them of the whole of Cleveland avenue. There are several of them, and without exception they cover lots lying east of the boulevard, and between it and Summit street, and just to the west of the improved portion of the town. In these conveyances the lots are spoken of as "Situate at Euclid shown on a certain map entitled Bentzen & Hill's section of Euclid No. 1, Hasbrouck Heights, N. J., 1897, filed in the Bergen County Clerk's office March 8th, 1897, and also on the street and assessment map of said borough," designated as lots numbers so and so. I find none which refer to the borough map alone, but all includereferenceto the Bentzen & Hill map. Hence the persons taking title from Bentzen & Hill had direct notice, by the map to which the deeds refer, that the grantors reserved a strip throughout the center of Cleveland avenue, and I am of the opinion that the effect of such notice is not overcome by their reference to the borough assessment map. The fact is that Bentzen & Hill thought, and justly, that, as they owned the greater portion of Cleveland avenue, the party which would have the benefit of the opening of that street should pay for so much of their land as lay north of the center of the street, and such claim, in my judgment, was just.
The ease, then, presents no elements from which an inference can be drawn that Bentzen & Hill have ever waived their reservation of the strip in question, and, on the proofs as shown, I must hold that the complainant, by any conveyance given by the defendant corporation, would not get the benefit of Cleveland avenue as a dedicated street west of Summit street, or, at least, that her right in that behalf is too doubtful to warrant this court in decreeing specific performance on the strength of its existence. I am further of the opinion that under the contract she was clearly entitled to have such benefit. The reference to the maps contained in the contract raised a clear implication that the streets marked on those maps were at least dedicated streets. This want of right to use Cleveland avenue as a dedicated street came to the knowledge of Mr. Cleveland before the time for finally performing the contract had elapsed (in fact, the time had been extended by the defendant corporation), and he demanded that such want of dedication should be remedied. The complainant, through her husband, paid $4,300 on account of the purchase, so that, up to a certain time, at least, her position was one of perfectly good faith. The defendants allege that she became disgusted with her purchase, and that the complaint in regard to the right of Bentzen & Hill to close Cleveland street was a mere excuse to enable her to get rid of carrying out the contract. There is some evidence to sustain that view. Mrs. Cleveland had no money of her own; her husband was to furnish the funds to make this purchase, and was undoubtedly disappointed in receiving moneys, and was short financially during the running of the contract. His business carried him away to Europe a good part of the time, and he became broken in health. Undoubtedly, in giving his evidence in London, he fell into some errors of fact, but I think they were innocent, and due to the circumstance that he had not the papers in the matter before him, and was embarrassed thereby in giving his evidence, and he did not have the benefit of being present at the hearing and correcting his errors, or of answering the evidence of the defendant. He clearly fell into an error as to the place where the contract of August 14. 1899, was executed by him, when he says that it was executed on board ship; he clearly confused that occasion with an occasion in the latter part of November, 1899, when he did hurriedly execute some papers on the eve of his leaving a second time for Europe.
The contract provided that complainant was to pay the interest on the mortgage from a certain time. The interest accrued and was unpaid before the arrival of the time upon which the complainant agreed to pay it, and foreclosure proceedings were commenced on a mortgage, and went to a sale. Besides this, the mother of Mr. Van Guilder, a Mrs. Fay, sued the corporation and got a judgment, levied on all the property included within the contract, and proceeded to sell the same. But the perfection of the sheriff's sale was arrested by an order of this court. Before she obtained her judgment the contract in question was recorded, so she took her Judgment with notice of the complainant's equity. I have said that the mortgage was foreclosed, and the property sold under that. All of the lots were not covered by mortgage, but were covered by Mrs. Fay's levy, and the precise contest presented by the complainant is whether she shall have a lien for the amount of $4,300, the purchase money paid by her, on so many of the lots as were not covered by the mortgage.
But to return to the defense of want of good faith on complainant's part. In order to thoroughly understand the force of this point made by the defendant, it is necessary to consider the occurrences between the date of the contract of August 14, 1899, and the 1st of October, 1900. The purchase price was $17,000, to be divided between the land company and Mrs. Quackenbush, in the proportion of $12,000 to the land company and $5,000 to Mrs. Quackenbush, but the incumbrances on the several properties were not in that proportion. Of this $17,000, $2,000 was to be paid or provided for at the date of the contract, $3,000 more paid in cash within three months after the date, which would be the 14th of November, and the balance of $12,000 in six months, which would be the 14th of February, 1900. The first $2,000 were paid, but how it was divided between the land company and Mrs. Quackenbush does not appear. The complainant went to London the next day, August 15th, and returned in the course of two months, just when does not appear. Between that and November 28, 1899, he paid the land company enough money, in addition to the previous payment, to make it up to $4,300, and took the receipt of its president for that amount. Whether that receipt included the whole of the $2,000 paid on the 14th of August does not appear, but the presumption is that it did not, but that Mrs. Quackenbush had a share of that first payment. Then about that time Mr. Cleveland made provision by which Mrs. Quackenbush was entirelypaid, the last payment being a little less than $200, and she conveyed her whole interest to the defendant; but out of her payment was taken, of course, the mortgages on her premises—just how much those were does not appear. Those mortgages were afterwards foreclosed, and the lots which Mrs. Quackenbush agreed to convey were sold and purchased by other parties. It would seem then that the $4,300 which the land company acknowledged to have received up to November 28, 1899, would include all its share, as against Mrs. Quackenbush, of the first two payments of $2,000 and $3,000 each provided for in the contract. The next payment due to the land company would be on the 15th of February, 1900, when the conveyance was to be made. Mr. Van Guilder was anxious to realize on such payment in advance of the time fixed for the delivery of the deed, and an arrangement was made on or about the 28th of November, quite hurriedly, just as Mr. Cleveland was about to sail for England, between Van Guilder and Cleveland, by which Cleveland agreed to accept the title at once and give back a mortgage to secure so much money as would be coming to the land company over and above the mortgages and other incumbrances on the lots which the defendant agreed to convey. For this purpose the amounts of the several liens were collected, and a statement of the total was made up. A mortgage was executed by Mr. Cleveland covering all the lots to Mrs. Van Guilder, with the amount to be secured in blank, and left by him with Mr. Winans, who was the conveyancing counsel for both parties, and had been the standing counsel for the land company. Mr. Cleveland took a statement, showing the incumbrances and payments, and the balance of cash that would be due the land company, on board ship with him for his second trip to London on business, with the understanding that he should examine the statement at his leisure on the voyage, and, when he had arrived in London and was satisfied of the accuracy of it, he was to write a letter instructing Mr. Winans to have his wife join in the mortgage, with the proper amount inserted, and deliver it and accept the conveyance. The time for the payment of that mortgage was the 30th of September, 1900. The effect of this arrangement, if it bad been carried out, would have been that the land company would obtain a mortgage for the balance due it nearly three months sooner than it would receive the cash by the terms of the contract, and the complainant would have obtained time until the 1st of September to pay that balance. In the meantime, the understanding was that Mr. Winans was to look at the incumbrances, and satisfy himself, in the complainant's interest, that it was safe for her to take the title and deliver the mortgage. Mr. Winans did look into the matter, and on the 15th of December, 1899, wrote Mr. Cleveland a long letter, giving the result of his examination, and advising him not to close the transaction in the present condition of the title and incumbrances; and the arrangement accordingly fell through. In the meantime, however, the land company obtained present pecuniary relief by putting mortgages on the premises, and thus anticipating payment. Mr. Cleveland returned from England, just when does not appear, and spent the summer of 1900 in and about New York, and in fact made his home with the complainant at Hasbrouck Heights. During this period he began to look about with a view of improving the property, and, among other things, of building a house which would occupy several of the lots. This led him to inquire into the matter of the final dedication and acceptance of the various streets, which existed only on paper, and he then discovered that Cleveland avenue had not been dedicated by the owners of the principal part of the bed of the street, He brought forward this objection to Mr. Van Guilder, and it became a subject of contention between them. At Mr. Van Guilder's request he attempted to negotiate with Bentzen & Hill for proper proceedings on their part to dedicate the street. They offered to do so for $000. Mr. Cleveland reported the offer to Mr. Van Guilder, who declined to pay it—said he would compel the borough to open the street. This the borough declined to do.
A further subject of contention arose between them as to the exact number of lots to be conveyed, and the fact that some of those which were mentioned in the contract could not be conveyed. In September, 1900, Mr. Van Guilder was pressing for closing the affair, and Mr. Cleveland finally suggested that he prepare his deed and let him see what he proposed to convey. Mr. Winans declares expressly that Cleveland told him that he (Winans), who was the conveyancer, might prepare the deed, so that he (Cleveland) could see what he would get by it. With regard to the time when the objection of the nondedication of Cleveland avenue arose, Mr. Winans says it was some time before the preparation of this deed. A deed was accordingly prepared and tendered to Mr. Cleveland, first on the 30th of September, and again on the 10th of October, and declined by him on various grounds, the principal of which was that Cleveland avenue was not dedicated. There was also contention as to the lots which were included in it, and, strange to say, this deed was not produced by the defendants, nor were any of the letters which Mr. Cleveland swears that he wrote Van Guilder from time to time, containing his objections to the title proposed to be made. There is no doubt, as before observed, that Mr. Cleveland was short of money at times during the summer of 1900, but I am unable to find that the objection to the lack of dedication of Cleveland avenue was a mere excuse to get rid of the contract. The objectionwas and is a serious one; it affects the value of a large number of the lots which he agreed to purchase, and I am unable to conclude that it was not made in good faith.
Now, upon these facts, the first question is: Could the defendant at any time have compelled the complainant to specifically perform the contract by accepting the conveyance of the premises and paying therefor? I think there can be but one answer to that question. The court would not compel the complainant to accept the title and pay therefor, and that disposes of the defendants' cross-bill, which prays specific performance. No offer was made at any time before suit commenced, nor was any made by the defendants' cross-bill or at the hearing, to apply to the matter of those lots fronting on Cleveland avenue a clause in the contract which provides that, in case either party shall fail or be unable to convey a good title to any lot or lots, then the amount of the consideration to be paid for said premises shall abate in proportion to the value that said portion shall compare to the whole property, and the contract shall not be deemed to be an entire contract, but severable for that purpose only. And I am of the opinion that such clause does not apply to the defect set up.
If, then, the land company could not in equity compel the complainant to complete the contract, does it not follow that the complainant may have relief for the money which she has already paid? And this seems to follow naturally from the other proposition, unless the complainant is for some reason estopped by reason of the defendants' having changed their position irretrievably. I find nothing of that kind in the case, except the foreclosure of the mortgages by reason of the complainant failing to pay the same according to her contract; but, if the complainant was never under any equitable obligation to pay the mortgages, her failure to do so cannot be set up as an estoppel by the defendant. It appears from the evidence of Mr. Cleveland, and that of Mr. Winans, that he gave notice to the defendant as soon as he discovered this defect, and the defendant should have protected itself in the matter of the payment of these mortgages. No evidence was given on the subject, but it is not at all unlikely that the property was bought in at foreclosure, so far as it was worth It, in the interest of the defendant.
The authorities on this Interesting subject are quite in point. Professor Pomeroy, 3 Pomeroy's Equity Jur. § 1263, is clear and explicit, and the authorities he cites are quite in point. I refer especially to the case of Rose v. Watson, decided by the House of Lords on the 17th of March, 1864, reported In 10 House of Lords Cases, 672. The case is singularly like the one under consideration. There a gentleman by the name of Potter was seised of land in the county of Chester, and contracted to sell a portion of it to Watson for the considerable sum of £8,295, payable in installments, with interest He also sold other portions to a man by the name of Dobbs in like manner, and Watson purchased that contract from Dobbs. After this sale Potter mortgaged the whole to the complainant, a life assurance society, for £40,000, and notice of the mortgage was given to the Watsons by the society. Potter, the owner, went into insolvency, and assignees of his estate were appointed. Watson also gave notice to the society of his contract to purchase, and that he had bought Dobbs' contract, and "that the said several contracts had been entered into with Potter upon a representation by the agent of Potter that a plan produced by him, and which contemplated the laying out of the whole of the estate, and the building of a church in the center, immediately contiguous to the lots so purchased, should be carried into execution; that this had not been done, and thereby the value of the land had been materially affected; and that the Watsons were entitled to treat the agreement as void on account of such unfulfilled representations; and they claimed to have a conveyance of the land they had purchased from Dobbs, in satisfaction pro tanto of the purchase money they had paid him." This claim was denied, and the assignees in bankruptcy filed a bill against the Watsons for specific performance of the two contracts—that of Watson and that of Dobbs. It was heard before Lord Cranworth as vice chancellor, who, on the ground of the representations, which he deemed material in the matter of the contract, dismissed the bill. 1 Simmons, N. S. 523. That report shows that the two contracts were there, as here, entered into on the strength of a map, exhibited by the vendor to the vendees at and before the signing of the contracts, showing the whole tract, of which the pieces conveyed by the contracts were a part, laid out into streets and squares, which were to constitute an addition to or suburb of the city of Birkenhead, and that the vendor promised the vendees verbally that he would proceed at his own expense to open and improve the streets and make other improvements, which he had not done. This suit was followed by a foreclosure of the mortgage of the assurance society, represented by Sir George Rose, the trustee, and therein the defendant Watson set up a prior lien for the sum of £1,575, which he had paid on account of the contracts. That cause was heard before Vice Chancellor Kindersley, who pronounced a decree in favor of Watson and against the mortgagee and assignee in bankruptcy, giving him (Watson) a first lien on the premises for the amount of money he had advanced. That case came on for hearing before the House of Lords, composed of Lord Westbury and Lord Cranworth, and they affirmed the decree below.
Another case is Turner v. Marriott, L. R. 8 Equity Cases, p. 744 (1866). Still anotheris Aberaman Iron Works v. Wiggins, L. R. 4 Ch. App. (1869) p. 101. There a Mr. Bailey was the owner of the Aberaman estate in Wales, on which were iron works and colliery, which he agreed to sell—estate, plant, and business—to Wiggins for £250,000, representing that the estate contained 1,530 acres. Wiggins organized a corporation called the "Aberaman Iron Works" to take the estate and work it, and entered into a contract with the corporation to convey the title to it. He was to receive £350,000, payable in installments, etc., and he represented the estate to the corporation as containing 1,530 acres. In point of fact, it only contained between 1,100 and 1,200 acres. After receiving £75,000 in cash and a batch of bonds from the company, the latter had a survey made and discovered the deficiency, and called on Wiggins for reparation. Wiggins then sued Bailey, the original owner, and his vendor, for damages for misrepresentation of acreage, and settled with him for the sum of £50,000, part in cash and part in bills of exchange on time. The company went into the hands of an official liquidator. The official liquidator brought this suit against Wiggins, and certain other persons interested with him in the transaction, to be relieved from its contract on the ground of the deficiency in the amount of the land, and to recover from" Wiggins the amount advanced to him on its contract with him, and for a lien on the bills of exchange still held by Wiggins as part of the consideration received by him in his settlement with Bailey. The defense was there set up that the real reason why the company did not take the property was that it had not the money. It was set up there, as here, that the land consisted in the works, plant, and the mines already opened to the view, and that the lack of acreage was of no consequence, and was put forward as a mere excuse. Lord Cairnes, who heard the case, said (page 107): "The argument that the company would have bought the estate with equal readiness had they known it to consist of less than 1,100 acres, and that their real reason for rescinding was want of money to complete, appears to me hardly to require an answer. If the deficiency is one which entitles them to rescind (and no one disputes that it is), they are entitled to rescind, even although they might have been willing to pay an equal sum for the smaller quantity, and even although rescission may, in a financial point of view, have been convenient to them." And it was held that the corporation was entitled to rescind, and could recover from Wiggins and his associates. And a lien was given the complainant on the unpaid bills of Bailey received by Wiggins in settlement of Wiggins' claim against him.
Another instructive case is Torrance v. Bolton, L. R. Equity Cases, vol. 14, 1872. There a property was sold at auction, and the particulars of sale were read by the auctioneer. The property was purchased by a Dr. Torrance, who was deaf and did not hear the particulars, and made a bid and paid deposit money. It appeared that he misunderstood the particulars, and he sued to recover back his deposit money and have it declared a lien upon the premises, and he was granted that relief.
For these reasons I will advise a decree for the complainant. The defendants may be heard upon the precise amount due complainant.