Opinion
05-13-1914
WEIDENBAUM et al. v. RAPHAEL et al.
Nathan H. Berger, of Newark, for complainants. William Tyacke, Jr., of Newark, for defendants Raphael. Isaac Spangenthal and Edward R. McGlynn, both of Newark, for defendants Herzfeld and Dreyfus.
Bill for specific performance by Wolf Weidenbaum and others against Pauline Raphael and others, heard on bill, answer, replication, and proof. Conditional decree for complainants.
Nathan H. Berger, of Newark, for complainants. William Tyacke, Jr., of Newark, for defendants Raphael. Isaac Spangenthal and Edward R. McGlynn, both of Newark, for defendants Herzfeld and Dreyfus.
EMERY, V. C. This is a bill for specific performance of a written agreement for sale of land in Newark made between Maley Weidenbaum, the wife of Wolf Weidenbaum, as purchaser, and defendant Pauline Raphael and Morris Raphael, her husband, as vendors, and defendants Herzfeld and Dreyfus, who purchased the land under a subsequent agreement. The purchase price of the land was to be $12,000, while the purchaser agreed to pay as follows: $100 on signing the agreement; $6,000 by accepting the conveyance subject to a first mortgage which the purchaser agreed to assume; $4,250 by executing and delivering a purchase-money mortgage as a second lien on the premises, payable $100 every six months, with 5 per cent. interest; and $1,650 in cash on purchasing title. The vendee died intestate before the day fixed for passing title, leaving her husband surviving and three heirs at law, infants aged,respectively, 12, 10, and 8 years of age. The husband has been appointed administrator of his wife. No inventory or account has been filed; but it is proved that the total personal estate does not exceed $2,000.
After the death of the vendee the vendors entered into another agreement to sell premises to the defendants Herzfeld and Dreyfus for the sum of $12,000, $100 paid in cash on the date of the agreement, $6,000 by accepting a conveyance subject to a mortgage of that amount, $3,500 by a purchase-money mortgage, and $2,400 in cash at. the settlement. Subsequently the conveyance was made under this second agreement, and the second mortgage for $3,500 was given to the vendors, and the balance of the purchase money (due after deduction of liens) was paid.
Before the receipt of the deed or the payment of any sum, except the $100 deposit, the second purchasers had notice of the prior contract, and are therefore not bona fide purchasers, except as to the amount previously paid, $100, and are protected only to that extent against the previous contract. Haughwout v. Murphy (Err. & App. 1871) 22 N. J. Eq. 531; Brinton v. Scull (Grey, V. C, 1897) 55 N. J. Eq. 747, 35 Atl. 843. The bill is filed by complainant individually, as administrator of the estate and next friend of the infant heirs.
The general rule is that heirs of a vendee are entitled to specific performance, and to have the administrator pay the purchase price out of the personal estate. Fry Sp. Perf. (4th Ed.) §§ 211, 217.
The married woman as vendee can be compelled to perform specifically (though not as vendor), and as to her the remedy is therefore mutual, as between her heirs and the vendor. Moore v. Baker (1903) 65 N. J. Eq. 104, 55 Atl. 106.
The fact that the heirs of the vendee are infants does not of itself prevent the specific performance of the contract in their favor as vendees, if either they or some one in their behalf are able to carry out the conditions of the contract on the purchaser's part It is not a case of disability of the infants in the making of a contract of sale which could not be enforced because of such disability.
But the vendee's right to specific performance is dependent on the fulfillment of the conditions to be performed on his part, and the assignee of a vendee, even when under no disability, is not permitted to substitute his personal liability on the unperformed conditions against the consent of the vendor. 26 A. & E. Ency. (2d Ed.) 126; Pom. Sp. Perf. § 320. Where the assignees of the vendee are trustees, and the execution of the contract requires covenants, specific performance in their favor cannot be compelled, unless they personally enter into the covenants. Id. §§ 331, 332.
In this case the personal estate of the wife is sufficient (if there be no debts) to make the payment on passing title, but not to make any further payments. The infants, on receiving the conveyance, cannot make any valid contract for further payments, nor assume the payment of the first mortgage, nor can the vendors (or their assignee, the second purchaser) be compelled against their will to accept a mortgage for the balance of the unpaid purchase money, without any personal obligation for its payment. It is contended on behalf of complainants that the agreement of sale does not expressly provide that a bond shall accompany the mortgage, or that there shall be any personal liability of the vendee for the unpaid purchase money. But there is no equity in this claim, for the agreement of sale contains an express agreement by the vendee to pay the purchase money, and, were she herself claiming performance, it could only be upon condition of continuing by the usual bond this personal obligation to pay the purchase price, made in the agreement itself. It is impossible, therefore, to carry out formally this provision for the securing of the future payment of the purchase money by installments; but, as it was manifestly the primary purpose of the agreement of sale that the conveyance should be made upon the payment of the purchase price, my conclusion is that, while the vendors cannot be compelled to convey on receiving a mortgage for the unpaid purchase money, a decree may be made for conveyance upon payment to them of the entire purchase money, less the amount of the prior mortgage. If complainant on behalf of the infant desires to take decree on this condition, I will hear application to settle decree, fixing time and settling the terms of the conveyance.