Opinion
No. 43—689.
05-28-1920
DOHERTY v. EGAN WASTE CO.
James R. Erwin, of Jersey City, for complainant. Queen & Stout, of Jersey City, for defendant.
Suit by Sarah A. Doherty against Egan Waste Company for specific performance. Decree for complainant.
James R. Erwin, of Jersey City, for complainant.
Queen & Stout, of Jersey City, for defendant.
GRIFFIN, V. C. The bill in this cause is filed to compel specific performance of a contract for the sale of lots 35 and 37, in block 16, on Mangin's map of 1804, being also lots 43 and 45, in block 66, on the Bacot map of 1861.
The contract is dated January 10, 1917; title was to pass May 1, 1917. The defendant refused to take title. The bill was filed August 15, 1917. The building was totally destroyed by fire December 5, 1917. The defendant became tenant in possession of the premises in 1909, and continued in possession, carrying on its business, until ousted by the fire, and thereafter collected $2,000 insurance covering its interest under the contract.
Defendant's objections are: (1) That the premises, as actually located, are 1.12 feet east of the true line called for by the deed. (2) That, assuming the location to be correct, the building on the lands on the westerly side line from a point beginning 33.70 feet from the street encroaches on the adjoining property to the west one and one-half inches at the beginning point, and one inch in the rear.
As to the first point; According to the Mangin map, the block is 200 feet by 400, being 200 on Washington and Greene streets, and 400 on Morris. It contains 32 lots, of the dimensions of 25 by 100 feet each. Washington street is laid down as SO feet wide, and Morris and Greene streets each 60 feet. As actually laid out on the land, Greene street is 60.08 feet in width at the corner of Morris street.
The length of the block, measured along Morris street, as built upon, is 401.42 feet, giving a surplus of 1.42 feet, 1 foot of which is in the two lots next Greene street; .12 of a foot is contained in the premises in question in front, and .20 of a foot in the rear; and .30 of a foot is included in the lots between Washington street and the westerly line of the premises in question.
All of these lots fronting on Morris street were, on the date of the contract, covered by buildings, each of which was in actual contact with the one next adjoining, all of which had been erected a long time, and none of which may be said to comply with the lines of the maps, excepting the two next adjoining the building on the corner of Washington and York streets. These two, with the one on the corner, should have a frontage of 50 feet; but the frontage is actually 50.52 feet, due to the fact, as the survey shows, that the corner house extends .52 of a foot into the street as laid out.
The remaining lots lying between Washington street and the premises in question, in their order running easterly from Washington street, with their width by deed, and as actually built upon as shown by survey, are as follows: Lot 59, Bacot map (being rear part of lots 19, 21, 23, Mangin map), by deed 25 feet, building 25.21 feet; lot 57, Bacot map (rear part of lots 19, 21, 23 Mangin map), by deed 25 feet, building 24.91 feet (deficiency less than an inch); lot 55, Bacot map (47, Mangin), deed 25 feet, building 25.18 feet; lots 51 and 53, Bacot map (43 and 45 Mangin map), each 25 feet by deed, and each building is 25 feet; the next building covers parts of lots 47 and 49, Bacot, and 39 and 41, Mangin, by deed 27.42 feet, building 27.42 feet; remaining part of lot 47, Bacot, and 39 Mangin, by deed 22.58 feet, building 22.58 feet. Thus every lot owner between Washington street and the premises in question has at least the width called for by his deed, excepting the case of lot 57, where there is a deficiency of less than one inch, which was taken by his neighbors, whose buildings are wider than their lots described in their deeds. Turning to the lots east, between the premises in question and Greene street, every owner has all the land called for by deed, and some have more. Thus the entire block is built upon, with each building in contact with its neighbor, and every owner fronting on Morris street has at least the quantity of land called for in his deed, excepting the owner of lot 57, above referred to.
In the conveyances of the various lots the beginning point, in the descriptions where metes and bounds are given as to lots west of the center line of the block, is the southeast corner of Washington and Morris streets, and, as to lots east of the center line, the southwest corner of Morris and Greene streets. In some instances, on both sides of said center line, the lots are merely described by lot and block numbers on Mangin's map.
The center line of the block, with or without the surplus, runs through the McGovernproperty. The easterly line of his property runs through the center of a party wall standing partly on his premises and those of Sowukin, to the east, whose lands abut the premises in question.
The description in the deed to McGovern (made in 1892) begins on the southerly side of Morris street, 175 feet easterly of the southeasterly corner of Washington and Morris streets, being in line with the easterly line of lot 43 on the Mangin map. The first course is then described as running along the easterly line of lot 43 on Mangin's map. After running several other courses, the fifth and sixth read as follows:
"Thence northerly and parallel with Washington street to and through the center of a party wall standing partly on the premises hereby conveyed and partly on the premises next adjoining, easterly seventy-five feet to the southerly line of Morris street, thence westerly along the southerly line of Morris street 27 feet 5 inches, to the place of beginning."
This description, when it refers to the center of the party wall as being "175 feet by 27 feet 5 inches from the corner," is erroneous in that, as actually built upon, the center line of the party wall, by reason of the surplus, is .30 of a foot farther east.
But an important feature of the description is that this easterly line of lot 43 is made to coincide with the westerly side wall of the building, and ties this easterly line 27 feet 5 inches (27.42 feet) from the center of the party wall.
If, therefore, the distance of 175 feet is accepted, the property intended to be conveyed is not correctly described; but if rejected as false, and the fixed monument, the party wall, is accepted as correct, then McGovern gets what he bargained for, and the other owners will not be disturbed in their possession.
Turning to the Sowukin property, being the easterly part of lot 39, which abuts the premises in question on the west, the center line of this same party wall mentioned in the McGovern deed is made the westerly boundary of his property. The beginning point in his deed is placed in the southerly line of Morris street 175 feet westerly from the southwesterly corner of Morris and Greene streets. The first course is described as running along the easterly line of lot 39 on Mangin's map, which is the dividing line between Sowukin and the premises in question. The third and fourth courses read as follows:
"Thence northerly and parallel with Greene street to, through, and beyond the center of a party wall standing partly on the premises hereby conveyed and partly on the premises next adjoining westerly thereto seventy-five feet to the southerly side of Morris street; thence easterly along the southerly side of Morris street twenty-two feet seven inches to the beginning."
What has been said as to the McGovern property may be repeated as to this. The center of the party wall is not 175 feet 22.58 feet from Greene street as the block is laid out and actually built upon, but is one foot and twelve-hundredths farther west.
By these two descriptions, McGovern and Sowukin acquired title to lots 39 and 41, being the two lots in the center of the block fronting on Morris street, and by these conveyances fix and establish the side lines of these lots a certain number of feet east and west of the center line of the party wall, and are in possession of the lands thus described, which are actually built upon in accordance with such descriptions.
Mr. Dunham, a prominent civil engineer, who made a great many surveys and locations in this block, says that the building on Sowukin's property has been used since at least 1868 as a fixed monument to locate the various properties in the block; that, by reason of the existing surplus, the lines of the various properties cannot be determined by reference to the maps alone; that resort had to be made to practical location, with a view to giving to every owner the quantity called for in his deed; that the same situation substantially exists, generally, as to lots and blocks on Mangin's map.
It must be quite apparent from the foregoing facts that the owners of lots in this block fronting on Morris street were confronted with conditions that, in the very nature of things, prevented them from establishing the lines of their properties by map, and were therefore compelled to, and did, resort to a practical location, each taking the quantity to which he was entitled by deed, and conceding the same to his neighbors.
The only person who could attack the complainant's title is Sowukin. Is he in a position where he even has a colorable right? In the deed under which he claims, his westerly side line is described as running through the center of a party wall, which has been a monument for upwards of 50 years. His easterly side line is described as lying 22.58 feet east of the center line of this party wall, which side line is also described as being the easterly side line of lot 39 on Mangin's map, which also, as a matter of fact, is the westerly side line of lot 37 on Mangin's map, one of the lots in question.
Upon the foregoing facts the lines of the property as established by practical location should be accepted as establishing the true boundaries of the premises in question, and the other descriptions inconsistent therewith should be rejected as false. Jacksonv. Perrine, 35 n. J. Law, 137; Spottiswoode v. Morris & Essex R. R. Co., 61 n. J. Law, 322, 339, 40 Atl. 505, affirmed 63 n. J. Law, 667, 44 Atl. 1100; Alt v. Butz, 81 n. J. Law, 156, 79 Atl. 881.
The foregoing cases were decided at law, where all persons interested were parties and were bound by the judgment. Here the persons who might assert against the tittle are not parties to the suit and will not be bound by the decree made herein; therefore the defendant argues that if compelled to take the property he will be exposed to litigation, and therefore this court should not decree specific performance. Van Riper v. Wickersham, 77 n. J. Eq. 232, 76 Atl. 1020, 30 L. R. A. (n. S.) 25, Ann. Cas. 1912 A, 319; Doutney v. Lambie, 78 n. J. Eq. 277, 78 Atl. 746 (which cases were decided by the Court of Errors); Kohlrepp v. Ram, 79 n. J. Eq. 386, 81 Atl. 1103.
In this latter case Vice Chancellor Garrison said:
"I incline to the opinion that, in view of two recent decisions in the Court of Errors and Appeals, the court of chancery has gone farther than it should go in deciding doubtful questions of law, and, of course, is fully vindicated and justified in not attempting to decide an issue of fact affecting the title where proof of the facts is not of record or always available to use. The two cases to which I refer are Van Riper v. Wickersham (1910) 77 n. J. Eq. (7 Buch.) 232, and Doutney v. Lambie (1910), 78 n. J. Eq. (8 Buch.) 277. Under the language of these cases, this court shall not force a title upon the defendant where there exists a legitimate question or doubt, either of law or of fact, affecting the title."
It is inconceivable how, under the facts of this case, there is even a remote chance of the owner of the premises in question being subjected to litigation by reason of the alleged mislocation.
There is no doubt, either of law or fact, as to the title. If Sowukin, or those claiming under him, should sue, the record of the Sowukin deed can at all times be used to show that the westerly line of the Sowukin lot is the center line of the party wall, and, measuring 22.58 feet easterly, no portion of the premises in question is included. The location of the center line of this party wall may always be shown with certainty; therefore there does not exist a legitimate question or doubt of law or fact affecting the title.
As to the second objection: the width of the premises in question actually built upon is 52.12 feet (50 feet and 1 1/2 inches) in front, and 50.20 feet (50 feet 2 4/10 inches) in the rear.
The building, when originally constructed, upwards of 29 years ago, was used solely as a stable. After Mr. Doherty purchased it in 1891 he added a second story to the front for use as a dwelling; this was completed in 1892, and so continued down to the date of the fire. The building was a frame structure, two stories in height. It is quite apparent that in erecting the building the joists or studding forming the side were built in contact with the side wall of the Sowukin building, without clapboards, and continued in a straight line to the rear of the building. When the rear of the Sowukin building was reached, a distance of 33.70 feet from the front, the building was clapboarded. These clapboards extended over on Sowukin's land .13 of a foot, substantially an inch and a half at the rear of Sowukin's building, and .8 of a foot (about one inch) in the rear of the lot. This encroachment could readily be removed at small cost by moving the portion of the encroaching side to the line of complainant's lot.
This slight encroachment should not deter the court from decreeing specific performance, as the defendant would receive all the land he bargained for, and be entitled to an abatement of the purchase price in an amount sufficient to pay the cost of making the building conform to the true line. Van Blarcom v. Hopkins, 63 n. J. Eq. 466, 52 Atl. 147; Capstick v. Crane, 66 n. J. Eq. 341, 57 Atl. 1045; Straus v. Norris, 78 n. J. Eq. 488, 494, 79 Atl. 611.
In view of the fire, it will be unnecessary to consider what this abatement should be.
As a result of the fire a situation has been created which did not exist when the bill was filed, viz., the defendant's right to object, based on the encroaching clapboards, unless time is of the essence of the contract.
The defendant entered into possession of the premises on July 1, 1909, under a lease given by James Doherty, the then owner, and continued in possession down to the date of the fire, on December 5, 1917. James Doherty died in the year 1912, leaving his will, in which he devised the premises in question to the complainant. From the date of the above lease until May 1, 1917, the date appointed in the contract for passing the title, the defendant was continuously in possession of the premises as tenant of James Doherty in his lifetime, and of the complainant since his decease. Whether the relation of landlord and tenant existed after May 1, 1917, or the defendant was in possession as equitable owner under its contract, does not distinctly appear. The defendant, however, insists that, if compelled to specifically perform, it should not be charged with the payment of rent, but interest only from May 1, 1917.
There is nothing in the written contract which makes time of its essence. There is nothing in the case which shows that the parties intended that time should be of its essence. After the 1st of May, 1917, when defendant refused to take the title, it continuedin possession, carrying on its business until December 5, 1917, as theretofore, and after the fire collected $2,000 on a policy of insurance covering his interest. The case is even stronger against the defendant than that of Gerba v. Mitruska, 84 N. J. Eq. 141, 94 Atl. 34, where the facts are quite similar.
My conclusion, therefore, on this point is that time is not of the essence of this contract, and the complainant was certainly in a position to perform on December 5, 1917.
The complainant also collected $2,000 insurance moneys on a policy covering her interest in the building, which she concedes should be credited on the purchase price.
The decree will be for complainant.
On the question of costs and interest, I will hear counsel at the chancery chambers in Jersey City on June 7th next.