Opinion
02-14-1938
SPRINGGARDEN BUILDING & LOAN ASS'N OF NUTLEY v. FUSARO.
William P. Hurley, of Newark, for complainant. Piro & Piro, of Nutley, for defendant.
Syllabus by the Court.
1. In foreclosure suit against infant defendants, the acceptance by the master of an ex parte affidavit as proof was erroneous (at least before the 1934 amendment of Chancery rule 186a, now rule 196).
2. Decree based on such proof is not void and cannot be questioned collaterally.
Action by the Springgarden Building & Loan Association of Nutley against James Fusaro to compel specific performance of a contract whereby complainant agreed to sell and defendant agreed to buy certain lands. On complainant's motion to strike defendant's answer on ground that it disclosed no defense.
Answer stricken.
William P. Hurley, of Newark, for complainant.
Piro & Piro, of Nutley, for defendant.
BIGELOW, Vice Chancellor.
This action is brought to compel specific performance of a contract whereby complainant agreed to sell and the defendant to buy certain lands. Complainant moves to strike defendant's answer on the ground that it discloses no defense. The question argued is whether complainant has a marketable title.
Title is derived through a foreclosure suit in which there were two infant defendants. The supposed defect is this: The final decree followed a master's report which, in turn, was based on an ex parte affidavit and not on the testimony of witnesses produced before the master. The acceptance of such proof by the master was erroneous. Bunting v. Bunting, 87 N.J.Eq. 20, 99 A. 840; Weining v. Selitto, 121 N.J.Eq. 60, 187 A. 368, affirmed Weining v. Sellitto, 121 N.J.Eq. 613, 192 A. 233, and Co-Investors Building & Loan v. Billet, N.J.Ch., 175 A. 90. I may note that Chancery Rule 186(a) has since been amended so as apparently to permit such proof, even when there are infant defendants.
While the procedure adopted by the master was erroneous, the judgment was not void. The decree unalterably binds the parties, including the infants, and cannot be questioned collaterally. "A purchaser of land sold pursuant to the decree of a court of general jurisdiction, assumes no responsibility for the correctness of the legal principles on which the decree is founded. All he need do is to see that the court had jurisdiction of the parties and of the subject-matter of the suit, and that the decree pronounced was within the scope of the pleadings. A record showing these facts must be accepted by every domestic tribunal as an undisputable verity." Shultz v. Sanders, 38 N.J.Eq. 154, affirmed Eisberg v. Shultz, 38 N.J.Eq. 293; Banta v. Board of Trustees, 39 N.J.Eq. 123; Silver v. Gattel, 89 N.J.Eq. 402, 105 A. 137.
Complainant's title is good. Strike the answer.