Opinion
No. 52/307.
11-13-1923
PHILLIPS et al. v. PHILLIPS.
Morris & Downing, of Newton, for complainants. Thomas M. Kays, of Newton, for defendant.
Bill for specific performance by Mary E. Phillips and another against William E. Phillips. Conditional decree for complainant advised.
The Vice Chancellor states the facts as follows:
I will express my understanding of the pleadings and proofs at this time while the latter are fresh in my memory, and reserve the consideration of the questions of law until I shall have had an opportunity to examine the brief of counsel for the defendant, which he desires to submit.
This is a bill for specific performance of a contract for the conveyance of real estate, with a counterclaim by the defendant for damages sustained by reason of the inability of the complainants to convey a marketable title.
William Maine died intestate, seized of a tract of land in the county of Sussex which, together with two other parcels of land, comprised the premises in question. Willi, in Maine had seven children, all living at the time of his death, one of whom was variously known as "W. Atwood Maine" and "Atwood W. Maine." Prior to William's death the said W. Atwood Maine had released and quitclaimed, in consideration of the sum of $1,876, all his estate, right, title, and interest in the property of his father, by a writing dated January 23, 1879. After the death of William Maine his remaining children other than Atwood with their respective spouses, joined in quitclaiming to Wesley A. Maine the lands of which their father died seized, as just mentioned.
Wesley A. Maine had two children, a son, William, and a daughter, the latter of whom died without issue and intestate during infancy, so that the title being considered is in William Maine. Upon the latter's death, February 18, 1916, the title devolved upon his widow, one of the present complainants, Mary E. Phillips, who afterwards intermarried with the other complainant, Brice D. Phillips. Wesley A. Maine died during the month of February, 1897, leaving a last will and testament, however, by which he devised an estate for years to his widow until the youngest child of testator should become 21 years of age, conditioned that all of his real estate should be sold and the amount divided between his wife and children "as the common law directs." Such a sale was not made, but his family continued to live in the premises, and, on August 19, 1918, the widow and executrix of the said Wesley A. Maine conveyed the land in question to her daughter-in-law, one of the present complainants, Mary E. Phillips, taking back a bond reciting as a condition that the said Mary E. Phillips should well and sufficiently support the said Mary A. Maine during her natural life and allow her to live upon the premises in question and enjoy the same as she was enjoying it, and to live as a member of the family of the said Mary E. Phillips, and in case the said Mary E. Phillips should sell or dispose of the premises in question then she should provide a suitable home and income and the payment in addition of all medical attention and nursing as should be necessary. The bond was accompanied by a mortgage upon the land and premises to secure the performance of the condition thereof.
In this state of affairs, counsel appear to have been consulted, and decided to carry through the direction of the testator for the sale of the land, as the result of a contract, to effectuate which this suit was commenced. The contract is in the ordinary and briefest form, and proviso for the sale of the land in question plus 127 acres with the appurtenances, and a small list of personal property to go therewith, in consideration of the payment of $4,500 to be paid by the payment of $100 upon the signing of the agreement, $900 on or before March 1, 1919, when possession was to be given, $500 and interest at 5 per cent. on all unpaid balance of the purchaseprice on or before March, 1920, and the balance to be covered by a mortgage to bear interest at 5 per cent. for the term of five years.
Morris & Downing, of Newton, for complainants.
Thomas M. Kays, of Newton, for defendant.
BENTLEY, V. C. (after stating the facts as above). Briefly, my difficulty with the defense, as a pure passive defense, is this: That assuming—and I am inclined to think that it is true—there was such a defect in the title as rendered it unmarketable in 1920, when title was to have passed, it has been corrected, and the situation now, as it appears to me, Is similar to that where a complainant makes a contract for land which he does not own at the time but secures the title and is in position to convey at any time before the final decree. Oakey v. Cook, 41 N. J. Eq. 350, 7 Atl. 495; Agens v. Koch, 74 N. J. Eq. 528. 70 Atl. 348.
It is unquestionably true that at the time of the making of the contract the absence from the record of the release from Atwood W. Maine to his father and mother amounted to such a defect as, uncured, would have justified the defendant in refusing the complainant's title. Their counsel has explained that, immediately upon objection by defendant for that reason, this release was exhibited to him and was subsequently recorded in the county clerk's office on June 24, 1921. Under the doctrine of Kohlrepp v. Ram, 79 N. J. Eq. 386, 81 Atl. 1103, from that time on the proof of the release was perpetually available to the defendant in support of his title.
Strenuous objection is made that time was of the essence of this contract; but I am unable to spell the same out of the facts and circumstances surrounding it. It, of course, is not pretended that this was so by the terms thereof, and there is nothing in the defendant's desire to raise poultry that would make it so.
Objection might have been made to the form of the bill, which prayed for the incompatible relief of reformation of the contract and specific performance thereof. Vogt v. Mullin, 82 N. J. Eq. 452, 89 Atl. 533; Davimos v. Green, 83 N. J. Eq. 596, 92 Atl. 96; Schwartzman v. Creveling, 85 N. J. Eq. 402, 96 Atl. 896. However, no objection was addressed to the bill, and the proofs remedied any inartificiality that existed when the defendant produced his copy of the contract, which was admitted in evidence and cured the omission in the copy of the complainants.
The defendant undertakes to make good his counterclaim by saying that at the time of entering into this contract he notified the complainants that he was purchasing for the purpose of establishing a poultry farm and that, with certain improvements he contem plated, he could have kept a far larger number of chickens thereon than would have been possible under the circumstances, and he has produced evidence for the purpose of showing that the net profit of $2 per hen may be counted upon per annum, and therefore he has annually lost a large sum of money.
The difficulty with this theory is manifold, but it is sufficient to say that, in the first place, the profits he so hoped to obtain are so speculative as to make it impracticable to forecast them; and, secondly, that if they can be computed this court is without adequate machinery to do so, and that it is a classical case for the interposition of the judgment of a jury. Besides that, there have been no sufficient reasons for the defendant's refusal to accept this title. His failure to make improvements and additions to the premises must cause any loss therefrom to fall upon his own shoulders. He has been constantly in possession, and must be charged with the consequences thereof.
It is clear to me that the release mentioned operated to divest Atwood W. Maine of all title he might otherwise have acquired in his father's real estate upon the latter's death. No other effect can be given, under the opinion of Mr. Justice Van Syckel in Brands v. DeWitt, 44 N. J. Eq. 545. 14 Atl. 894, 6 Am. St. Rep. 909, and the reasons for this doctrine are set out by Vice Chancellor Van Fleet with his usual force and clearness and adopted by the Court of Errors and Appeals :
"Vice Chancellor Van Fleet, in Green v. Hathaway, 9 Stew. Eq. 471, says: 'The justice of this doctrine is obvious; it is designed, in the first place, to compel a child to abide by its promise, and thus prevent the expectation of the father from being disappointed, who, but for his trust in the promise, would have made a will; and, in the second place, to secure equality among those who have equality of right. But such agreements when they concern lands, are like others, subject to the statute of frauds, and unless they are in writing cannot be enforced.' This we consider to be the correct rule, and the reason for it. The English cases support this view. Hancock v. Hancock, 2 Vern. 665; Lockyer v. Savage, 2 Strange 947; Medcalf v. Ives, 1 Atk. 63; Heron v. Heron, 2 Atk. 160."
When the complainants filed their bill to remove a cloud upon the title in question, it is clear to me that the same was unnecessary, but was done out of an abundance of caution to meet the objection of the defendant, so that the latter might, in addition to the record in the county clerk's office, have a decree of this court to sustain his title.
I will advise a decree for specific performance, upon condition, of course, that the complainants cause a cancellation to be made of the bond and mortgage from Mary E. Maine to Mary A. Maine for the support andmaintenance of the latter during her life, as they have tendered themselves able and ready to do. Under the familiar rules of this court I do not see how I can consistently comply with the request of the defendant that no costs be allowed.