Opinion
No. 44/453.
10-22-1918
WRIGHT et al. v. PELL et al.
Frank Benjamin, of Newark, for complainants. Arthur T. Vanderbilt, of Newark, for defendants.
Bill by William E. Wright and others against Thorold W. Pell and others. Decree for defendants.
Frank Benjamin, of Newark, for complainants.
Arthur T. Vanderbilt, of Newark, for defendants.
STEVENS, V. C. This is a bill for the specific performance of a contract to conveyland. The defense is defective title. The title stands thus: Emily J. Smith, by deed, in form a warranty deed, conveyed tbe land in question to James N. Wright to secure a loan of $1,050. He gave her an agreement of defeasance. Her husband, Thomas, was not a party to the deed, but he subscribed it. Not being a party to it, the deed did not convey his right of curtesy (Jason v. Johnson, 74 N.J.Law 530, 67 Atl. 42, 122 Am. St. Rep. 402), and did not vest in the grantee more than an equitable interest. By bill of strict foreclosure, Wright sought to foreclose the interest of the heirs of the grantor, she being dead, and of her husband and certain of her husband's creditors. Following a decree pro con., there was a decree "that the deed and agreement of defeasance be decreed to be a mortgage upon the land and premises described therein," and there was a reference to a master to ascertain the amount due. The final order was "that the defendants do from henceforth stand absolutely debarred and foreclosed of and from all equity of redemption of, in, and to the said mortgaged premises."
The objections to the decree for specific performance are: (1) That Mr. Wright cannot convey the legal as distinct from the equitable title; and (2) that the estate by the curtesy of Thomas C. Smith (Mrs. Smith having died) has not been foreclosed. Both of these objections seem to me to be well taken. What Mr. Wright got from Mrs. Smith was not a legal title (her husband not having joined in the deed), but an equitable pledge. Schickhaus v. Sanford, 83 N.J.Eq. 454, 91 Atl. 878; Phelps v. Morrison, 25 N.J.Eq. 538. I am at a loss to understand how the decree of strict foreclosure could operate to give Mr. Wright more than Mrs. Smith gave him; that is, an equitable interest, in contradistinction to a legal one. It is her equity of redemption in what she gave him that is cut off, and what she gave him was an equitable and not a legal right. The present situation of the title seems to be an irredeemable equitable estate vested in Wright and a bare legal title outstanding in Mrs. Smith's heirs, conveyance of which may, of course, be compelled.
In the second place, there is nothing to indicate that Mr. Smith has lost his curtesy. It is self-evident that he did not part with it by deed, because he did not make a deed. Counsel's contention that the effect of the strict foreclosure was to deprive him of it is based, and based only, on the opening paragraph of the bill praying strict foreclosure. The allegation, contrary to the admitted fact, is as follows:
"That Emily J. Smith, being indebted to your orator [James N. Wright] in the sum of $1,050, with her husband, Thomas C. Smith, conveyed by warranty deed," etc.
This allegation, counsel argues, was admitted when Smith permitted a decree proconfesso to be taken against him. It was undoubtedly admitted for the purposes of that suit, and, had it been decreed therein that Smith had conveyed, the decree would have bound him, although founded on an erroneous conception of the evidence and of the law. But the chancellor made no such decree. He only decreed strict foreclosure of such equity of redemption as the several defendants had. Smith had no equity of redemption; he had a curtesy. There is, therefore, no decree to operate by way of estoppel. Is, then, the allegation, in itself, an estoppel in a subsequent and independent proceeding, not because Smith himself made the admission, but because he allowed the fareclosure bill to be taken as confessed against him? The case is at best one of implied admission, prima facie proof, but an admission which an inspection of the deed would show to have been contrary to the fact. It is doubtful, however, whether it could be held to be an admission at all. It is stated in Taylor on Evidence, §§ 859, 1753, that bills in chancery are not admissible as proof of the admissions they contain, "since the facts stated therein are regarded as nothing more than the mere suggestions of counsel." The reason given applies with peculiar force to the case in hand.
For these reasons, I think that defendant cannot be compelled to take the title.