Summary
In Lutz v. Alkazin, N.J. Ch., 55 A. 1041, which was a suit to reform a contract for sale of land and for specific performance so as to include 10 feet not in the description of the contract, the counsel overlooked the prayer to include the 10 feet and took judgment omitting it.
Summary of this case from Rieckhoff v. WoodhullOpinion
10-05-1903
LUTZ v. ALKAZIN et al.
Geo. A. Bourgeois, for complainant. E. A. Higbee, for defendants Alkazin.
Suit by Charles S. Lutz against Milhim P. Alkazin and others. Defendants Alkazin petition to have the decree for complainant opened. Granted.
Geo. A. Bourgeois, for complainant.
E. A. Higbee, for defendants Alkazin.
GREY, V. C. (orally.) The bill in this cause asked for the reformation of a contract for the sale of a lot of land in Atlantic City, by extending the description of the lot to include 10 feet at the rear end, and for the specific performance of the contract (when so amended) by the defendants. A final decree in favor of the complainant on both prayers has been entered against the defendants. Milium P. Alkazin and Ameen P. Alkazin are two of the defendants. They now file their petition asking to have the decree opened, and that they be let in to defend as to the 10-feet extension, on the ground that to that part they held a title which was antecedent and superior to the contract of sale; that they and their counsel understood and believed that the bill of complaint in the cause only sought performance of the contract as originally expressed, and through inadvertence did not know the reformation of thecontractto include the 10 feet was asked for, and for this reason no defense was made. In cases of this character the party seeking to open a decree must show that he has a meritorious defense, and that the order which he seeks to have opened was obtained by what is called "surprise." In the present case the proof is undisputed that the Alkazin defendants did hold an interest in the 10 feet by deed made and recorded antecedently to the making of the contract of sale sought to be enforced. This is a showing that they had a meritorious defense. On the element of surprise, it appears that the Alkazins submitted the papers in the cause to the examination of counsel under the belief that all that was sought in the suit was the enforcement of the contract for sale of the lot as described in that contract, which did not include the 10 feet at the rear; that they did not know or notice that the bill sought to reform the contract. Their counsel also overlooked the special relief sought. The Alkazins had no defense to the enforcement 'of the contract as it was expressed on its face. They were not themselves parties to it, as it was an option contained in a lease made to the complainant by an antecedent owner, under which the complainant entered. No defense was made, because of the mistaken understanding and belief of the Alkazins and their counsel that the decree sought was only the enforcement of the contract as it was expressed on its face. The Alkazins now ask that if the complainant is not willing to amend the decree, so that they shall not be required to convey the 10 feet, which they claim to hold by a title superior to the complainant's contract, the decree may, as to them, be opened, and they be let in to defend as to this 10 feet. The showing is that the Alkazin defendants gave attention to the suit, and had their counsel examine the bill of complaint. By mistake, he overlooked the special prayer. This certainly was not an error of judgment, for, as the counsel did not see the special prayer, he did not consider and pass on the questions it suggested. Both counsel and client believed the relief sought to be limited to the lot as it was described in the complainant's contract. The bill of complaint is indorsed, "On bill for specific performance," not indicating that it sought, as part of the relief, the reformation of the contract. The premises of the bill stating the ground on which reformation is sought are very meager, consisting of but five lines. Furthermore, the bill of complaint prays that the Alkazins may be decreed to convey, but does not in any way recite or refer to their deed by which they held a title superior to the complainant's contract, so that the bill gave little warning that a decree was asked, the effect of which would be to compel them to convey the title acquired by that deed. The Alkazin defendants have, I think, under these circumstances, exhibited such a case of surprise, as well as merits, that they should have the decree opened as to them, and they be let in to defend as to the conveyance of the 10 feet in the rear of the lot described in the contract for sale, unless the complainant prefers to amend the decree so that they be released from its obligation as to that 10 feet.
If the decree be opened, and the Alkazin defendants be let in to defend, it should be upon terms that they pay the costs of the complainant from the entry of the decree pro confesso, and that no costs be allowed them on their petition to open the decree.