Opinion
12-17-1929
HARRINGTON CO. v. KADREY et al.
Merritt Lane, of Newark, and Harry B. Brockhurst, of Jersey City, for complainant. Edwin P. Longstreet and Ward Kremer, both of Asbury Park, for defendants.
(Syllabus by the Court.)
Suit by the Harrington Company against Richard H. Kadrey and others. Decree for complainant.
Merritt Lane, of Newark, and Harry B. Brockhurst, of Jersey City, for complainant.
Edwin P. Longstreet and Ward Kremer, both of Asbury Park, for defendants.
BERRY, Vice Chancellor. This bill is filed by the vendor against the vendee for the specific performance of a contract for the sale of land. In the contract of sale the property is described as located in the city of Long Branch, "fronting on the westerly side of Ocean Avenue and the northerly side of New Court which is laid down and designated as plot No. Thirty-Two (32), Block Sixty-Three (63), Section (2) Two, as shown on the map of the City of Long Branch, New Jersey, adopted by the City Council August 6, 1906, W. S. Seaman, City Engineer." The agreement provides for a conveyance by warranty deed free from all incumbrances. The contract is dated August 12, 1925, but, it is admitted, was not executed by the complainant until August 17, 1925, and by the defendant Kadrey some weeks later. October 15th was the date fixed for settlement. The defenses to this suit are (1) encroachment of the building over the street line; (2) the existence of a party wall not set forth in the contract; (3) that the property has a frontage on Ocean avenue of only 78 feet 5 inches, whereas the contract calls for 85 feet; (4) that the property is subject to certain restrictive covenants; and (5) that the property had been sold for taxes.
The second defense was not urged at the hearing nor in the arguments of counsel and there was no evidence supporting it. The fifth defense was abandoned after complainant produced at the trial papers indicating that the property had been redeemed from the tax sales. The only defenses argued are the first, third, and fourth. These defenses will be considered in their order.
1. The encroachments complained of consist of overhanging cornices, decorative metal covered pilasters on the front of the building, and some slight encroachment due to bulging of the metal covering of the building on the New Court side. They are all susceptible of removal at slight expense; in fact, the encroachments of the New Court side had been removed prior to the final hearing. It is urged that these encroachments on the street line constitute incumbrances against the property justifying the refusal of the defendant to accept a conveyance under the contract, but it is clear that they are not. Scheinman v. Block, 97 N. J. Law, 404, 117 A. 389, affirmed 98 N. J. Law, 571, 119 A. 926. The encroachments are not on the land to be conveyed, but are of a portion of the building over the street line. In Scheinman v. Block, supra, it was held that, in the absence of a special provision in the contract of sale against such encroachments, the existence of an encroachment of a building over a sidewalk, maintained by lawful municipal authority, does not amount to a defect in or incumbrance on the title which would justify a purchaser in refusing to complete his contract of sale. See, also, Waterman v. Taub, 127 A. 676, 3 N. J. Misc. R. 216, affirmed 102 N. J. Law, 472, 131 A. 924. The usual provision inserted in a contract for the sale of land, to avoid this result, is "that all buildings are within the property lines as described in the contract," but no such provision was contained in the contract here under consideration. It appeared in evidence at the final hearing that the overhanging cornices complained of are expressly permissible under the Building Code of the city of Long Branch, and that the governing body of that city had by ordinance granted permission tothe complainant, its successors and assigns, "to maintain the said building now erected on the said premises as the same now stands until such time as the same shall be demolished, removed or rebuilt, at which time the same shall be made to conform to the property lines of said lot." It therefore appears that the encroachments complained of are being "maintained by lawful municipal authority." Counsel for defendants urge, however, that this ordinance is not sufficient to overcome the objection because qualified and limited in its extent and application, and cite in support of this contention Isserman v. Welt, 101 N. J. Eq. 634, 139 A. 237, 238. Complainant cites Larkin v. Koether, 101 N. J. Eq. 176, 137 A. 849, in support of its contention to the contrary. Neither case applies. In the Koether Case, the portion of the street upon which the buildings encroached was vacated by ordinance, and, as the title of the complainant extended to the center of the street and the public easement having been removed, the building came within the boundary lines, and thus the objection was removed. In Isserman v. Welt there was an encroachment on the street line, and the city of Elizabeth by ordinance granted permission to the owner to maintain the encroachment "until such time as the present building be removed or require as reconstruction or rebuilding, at which time the same shall be made to conform to the building line as shall then be established." It was there held that the rule of Larkin v. Koether did not apply because there was no vacation of the street or any portion of it, but there was only a permissive ordinance, qualified and limited in its extent and application, and under the provisions of which the purchaser might at any time be involved in litigation. In both of these cases the contract under consideration contained a special provision that all the buildings were within the boundary lines of the property as described therein. There is no such provision in the contract involved in this suit. For this reason neither these cases, nor Goldstein v. Ehrlick, 96 N. J. Eq. 52, 124 A. 761, cited by defendants, apply.
3. The defendants claim that the complainant misrepresented the extent of the frontage of this property on Ocean avenue to be 85 feet, whereas an actual survey of the property showed the frontage to be 78 feet 5 inches, and claim, therefore, that, if obliged to perform his contract, an abatement of the purchase price should be allowed on account of such deficiency.
I think it is clear that no misrepresentations were made with respect to the frontage of this property. It is true that the map which is referred to in the contract of sale indicates that the property has a frontage of 85 feet on Ocean avenue, but the contract itself does not specify the number of feet frontage and the evidence indicates that the exact frontage of the property was not a material feature of the contract. The first negotiations between the parties respecting this property were on the evening of August 12, 1925, when the defendant paid the complainant a deposit of $1,000 on account of the purchase price and in the receipt which was given by the complainant at that time the property is described as "the three apartments Nos. 646-648-650 Ocean Avenue, West End, New Jersey." When that receipt was given, Mr. Brockhurst, of the complainant company, asked the defendant Kadrey to inspect the property, but this he declined to do, saying that he was perfectly familiar with it, as he undoubtedly was. But two days later, namely, August 14, 1925, the defendant Kadrey made a contract of resale to third parties, and in that contract described the property as having a frontage of "about 81 feet," a clear indication that he knew at that time that the plot did not have a frontage of 85 feet and that he was not expecting to receive a conveyance of that much frontage. He claims, however, that, after making the contract of resale, he was informed that there was a shortage in the frontage on Ocean avenue, and that he then took the matter up with Mr. Brockhurst, who reassured him and told him that the property had a frontage of 85 feet. As a matter of fact, what Mr. Brockhurst said on this occasion was that he thought there was 85 feet because the map showed it. However, what the defendant Kadrey was buying was the physical property which he saw and was familiar with, regardless of the exact frontage. It cannot be denied that on August 14, 1925, he thought it had less than 85 feet frontage, and, when his vendees called his attention to the fact that the frontage was less than 81 feet, he did not rescind the contract, but, on the contrary, dealt with the property in such fashion that he must be held to have waived this objection if it was material. As was said in Van Blarcom v. Hopkins, 63 N. J. Eq. 466,
52 A. 147, the purchaser is getting "the precise lot of land for which he contracted." This defense, therefore, cannot prevail, nor, under the circumstances as described by the evidence here, do I think the defendant has any right to an abatement in the purchase price.
4. While admitting the existence of the restrictive covenants urged as a defense to this action, the complainant claims that they are not a valid objection because, first, changed conditions in the neighborhood of the location of the property in question would justify a finding that the restrictions are no longer binding; and, second, that the defendant has waived these restrictions as a defense or as a reason for not performing his contract. But the evidence does not justify a finding that the restrictions are not binding even if all the parties who might take advantage of those restrictions were before the court, and they are not.
The evidence as to a waiver of these restrictions consists of the fact that two daysafter the defendant Kadrey had made a deposit of $1,000 on account of the purchase price of this property, in his contract of resale to third parties, he provided that his conveyance should be "subject to restrictions of record" and this is strong evidence that he knew of the restrictions at that time. After this knowledge, and after the execution of the formal contract, he dealt with the property and with the complainant in such manner as to indicate a waiver of any right to object to the title because of these restrictions. No mention of the restrictions as a reason for refusal to perform was made by the defendant until the filing of his answer in this suit, and it is significant that in the letter, Exhibit CS, stating the grounds for refusal to perform, there is no mention of building restrictions. It would seem that this defense was an afterthought, and, as was said in Aron v. Rialto Realty Company, 100 N. J. Eq. 513, 136 A. 339, affirmed (N. J. Err. & App.) 140 A. 918, seized upon as an excuse and not a reason for nonperformance. See, also, Ohio & Mississippi Ry. Co. v. McCarthy, 96 U. S. 258, 24 L. Ed. 693; Cowdrey v. Greenlee, 126 Ga. 786, 55 S. E. 918, 8 L. R. A. (N. S.) 137; Gibson v. Brown, 214 Ill. 330, 73 N. E. 578, at page 582. In the meantime he had dealt with the property as though the equitable title were in him by making a contract of resale and by filing a bill in this court to compel, his vendees to specifically perform that contract. He could not have so acted unless he intended to be bound by the contract with the complainant. This was conduct evidence such as was referred to in Faulkner v. Wassmer, 77 N. J. Eq. 537, 77 A. 341, 30 L. R. A. (N. S.) 872, indicating a waiver of defendants' right to refuse title on account of these restrictions. See, also, Bianchi v. Herman, 105 N. J. Eq. 226, 147 A. 505. Counsel for defendants urge that under the rule of Propper v. Colson, 86 N. J. Eq. 399, 99 A. 385, and Simpson v. Klipstein, 89 N. J. Eq. 543, 105 A. 218, no waiver can be spelled out of the acts of the defendants, but Propper v. Colson holds merely that no presumption of waiver arises from the mere fact of knowledge of an incumbrance. The waiver alleged here is not based upon presumption arising from knowledge, but is based upon affirmative acts after knowledge obtained.
I will advise a decree for the complainant.