Opinion
09-09-1904
WHITE et al. v. SMITH.
Thompson & Cole, for complainants. Louis G. Morten, for defendant.
Suit by Josiah White and others against Ella Etta Smith for injunction. Rule to show cause discharged.
Thompson & Cole, for complainants.
Louis G. Morten, for defendant.
BERGEN, V. C. One Josephine T. Weaver, on the 30th day of September, 1897, entered into a written agreement with the complainants, by the terms of which she leased them certain lands in Atlantic county for a term expiring October 1, 1903. This agreement contained an option to the complainants to purchase the land at any time during the continuance of the lease at a price fixed therein. The option was exercised December 18, 1902, and a tender of the purchase price as reserved was made to the lessor, who refused to comply. On August 3, 1903, a bill of complaint was filed by these complainants against the lessor, praying for the specific performance of the contract, and such proceedings were thereafter had that on the 26th day of May, 1904, a final decree was made in that cause, requiring the lessor to convey her interests in the lands to the complainants. Prom this decree an appeal was taken to the court of errors and appeals, where the cause now rests undetermined. On the 27th day of October, 1903, a judgment at law was recovered by the defendant in this suit against the said Josephine T. Weaver, on which judgment an execution has been issued, and the interest of the said judgment debtor in the lands levied upon and offered for sale by the sheriff of the county of Atlantic, according to the command of said writ. It is this sale which the complainants now seek to enjoin, alleging as reasons for the equitable interference sought that if the decree should be affirmed the defendant would be without any legal right in the premises, and that a sale under her judgment would throw a cloud over the complainants' title.
The court of errors and appeals in this state have held that a court of equity will not enjoin a sale under an execution against one because the title to the lands sought to be sold is claimed by another, for the reason that the sale will not prejudice the rights of the latter. American Dock and Imp. Co. v. Trustees of Public Schools, 35 N. J. Eq. 181, 258. In this case, if the decree for specific performance should be reversed, these complainants would have no standing whatever; if it should be affirmed, and in the meantime a sale had taken place, the question between them is one of title, which can be tried, and properly so, in a court of law.
I will advise an order discharging the rule to show cause.