Van Riper v. Wickersham

The opinion of the court was delivered by Voorilees, J.

Whether the complainant was in laches in procuring the authority from the court of chancery to make the conveyance under the will was a question of fact. Between the execution of the agreement and the filing of the bill the defendant consulted a conveyancer in Philadelphia, who in turn consulted a title company, and in October • notified the complainant that a commission in lunacy for Laura and the appointment of a guardian would be required by the title company. The complainant was not willing to take proceedings of that character, which would consume more time, and New Jersey counsel was called in, advising that such proceedings were not necessary, and thereupon took up the matter with the title company selected by the defendant, and finally reached an understanding some time in December with the title company that the proceedings, as they were finally taken, should be commenced.

We agree with the conclusion of the vice-chancellor that the complainant was reasonably diligent, and is not chargeable with laches in the commencement of those proceedings under the circumstances evinced by the proofs.

That being admitted, it follows that the tender of the deed was within the time prescribed by the contract, namely, within thirty days after the decree was entered in the court of chancery.

The next question to be determined relates to the title tendered, whether it was unmarketable because of a possible interest outstanding in Mary Emma Bothenberger.

*237 The principle adopted by courts of equity in matters of specific performance is that they will not compel a purchaser to take a title of which there is a reasonable doubt, and such doubt is held to exist if the purchaser, desiring to sell the lands, would be adversely affected by such doubt. Fry Spec. Perf. ch. 17.

Professor Pomeroy, in his work on Specific Performance (at § 198), says:

“In suits by a vendor the purchaser will not be forced to complete the contract unless the title is free from reasonable doubt. * * * If, however, there arises a reasonable doubt concerning the title, the court, without deciding the question, regards its existence as a sufficient reason for not compelling the purchaser to carry out the agreement.”

So it is the uniform rule in this state to decline to decree performance where such doubt exists, though rested on grounds merely debatable, but which might visit upon the purchaser litigation in that regard, and that too where at law the title might in fact be declared good. The following cases are in point: Vreeland v. Blauvelt, 23 N. J. Eq. (8 C. E. Gr.) 483; Dobbs v. Norcross, 24 N. J. Eq. (9 C. E. Gr.) 327; Tillotson v. Gesner, 33 N. J. Eq. (6 Stew.) 313; Cornell v. Andrew, 35 N. J. Eq. (8 Stew.) 7; S. C., 36 N. J. Eq. (9 Stew.) 321; Paulmier v. Howlamd, 49 N. J. Eq. (4 Dick.) 364; Lippincott v. Wilcoff, 54 N. J. Eq. (9 Dick.) 107; Day v. Kingsland, 57 N. J. Eq. (12 Dick.) 134.

We agree with the learned vice-chancellor that the objection raised to the title tendered should be decided in favor of the vendee.

The decree below allowed to the complainant thirty days in which to procure the release of the alleged outstanding interest and to tender it within that time, together with the executor’s deed. While this allowance of time is not made a specific ground of appeal by the defendant, yet the point has been argued.

The complainant, however, alleges as ground of appeal that he should not be compelled to obtain the release of Mary Emma Rothenberger. A material allegation of the bill is that the complainant executed and tendered to the defendant a good and valid deed of conveyance and that the complainant was ready and *238 willing to deliver a good and valid conveyance in accordance with the agreement.

In her original answer the defendant admits the tender made to her of the deed mentioned by the complainant and her refusal to accept is placed, not upon the ground that the title thus offered was unmarketable, but because of the laches of the complainant in making the tender. This ground is set out in the answer with extreme minuteness. If the defendant did not thus, by failing to answer the material allegation of the tender of a good title, confess that fact (Sanborn v. Adair, 29 N. J. Eq. (2 Stew.) 338; Lee v. Stiger, 30 N. J. Eq. (3 Stew.) 610; Jones v. Knauss, 31 N. J. Eq. (4 Stew.) 609; Pinnell v. Boyd, 33 N. J. Eq. (6 Stew.) 190; Halsey v. Ball, 86 N. J. Eq. (9 Stew.) 161; Heyde v. Ehlers, 10 N. J. Eq. (2 Stock.) 283; Tate v. Field, 56 N. J. Eq. (11 Dick.) 35), she lulled the complainant into inactivity and a feeling of security as to any objection that might be urged on the score of title and she furthermore allowed this condition of affairs to remain undisturbed until the day of the final hearing, excusing her delay, however, upon the ground that the true state of the title was unknown to her until about the time of the hearing. Furthermore, in March, 1908, two months before the decree, the defendant served notice of rescission of the contract on account of delajr. No objection was then made to the character or the validity of the proceedings for obtaining an order authorizing the complainant to sell.

This conduct of the defendant likewise had a natural tendency to raise in the mind of the complainant a reasonable belief that the point of difference between the parties was laches and not the character of the title. Now, if the defendant had promptly specified that objection would be made to the title, the complainant would have had all the time existing between the disclosure of that defence to him and the entry of the decree, in which to remove the defects complained of. So that we do not need to press to its extreme result, the effect of the failure to answer the material allegations of the bill as to a good title being tendered, but may rest upon the fact that the silence of the defendant in this particular has raised an equity in favor of the complainant, entitling him to such reasonable time for completing the title *239 not exceeding that which he might have had if the defendant had urged this defence promptly.

The English rule seems to be that laid down in Langford v. Pitt, 2 P. Wms. 630, by Sir Joseph Jekyll, M. R., that it is sufficient if the party entering into articles to sell has a good title at the time of the decree. The eases are collected under Seton v. Slade, 2 White & T. Lead. Cas. (4th Am. ed.) 529. It has been said that the courts have never directed performance by the vendee if the title at the time of the decree was still defective. The English rule, however, holds that if the master’s report on title is that the vendor, upon getting in a term or getting administration, &c., will have a title, the court will put him under terms to procure that speedily. Coffin v. Cooper, 14 Ves. 205. In a note to Cooper v. Drnne, l Fes. 567, it is said that the rule has been productive of great hardship, and Lord Eldon, who decided Coffin v. Cooper, declared that he would never extend it to any case to which it had not been previously applied.

The difference, however, between the practice of the English courts and that of our own, makes it illogical to apply their rules with exactness to all cases arising in our courts. They have the matter of title first referred to a master to report upon and then comes the decree. They hold that perfection of the title by the time of the decree, that is, after its adjudication by the master, is sufficient. How with us the title is not adjudicated until the final hearing, upon which a decree may be entered and signed immediately. Thus we see that the English rule is even more lenient than ours, for it allows the necessary time intervening between the master’s determination of the title and the time of the entry of the final decree.

Professor Pomeroy, in his work on Specific Performance (at § 424), says: • “There are many modes in which the vendee, by his acts or omissions, will waive all right to object to the vendor’s delay in making out a good title.” And in Seton v. Slade, 7 Ves. 265, where specific performance was decreed, the abstract, though delivered very late, and under a notice that the vendee would insist on his deposit, with interest, if the title should not be made out and possession delivered by the time of payment, having been received and kept without objection, Lord Eldon, *240 upon summing up the case, said: “Under the circumstances, therefore, whether the time is or is not an objection founded upon the authorities, the reports of this court furnish — which I will not discuss, let the authorities upon that point turn the scale either for the defendant or the plaintiff — there is no authority that has not some reference to the conduct of the party in the meantime; and upon the conduct, this defendant has no right, under the circumstances, to say this contract was not performed within the two months.”

In Murrell v. Goodyear, 1 DeG. F. & J. 432, Lord Justice Turner said: “I am not prepared to hold that in the case of bona fide conduct on the part of the vendor putting up property for sale in winch he has a partial interest supposing himself to have entire interest, it is competent to a purchaser to say that the contract shall be no contract if the vendor is able ultimately to make a title to the property according to the more extended interest he has contracted to sell. I certainly have always thought that in such a case a purchaser could have no right to resist a specific performance of the contract. But I say without any hesitation that if a purchaser has any such right as he has contended for and insisted upon on the part of this defendant, it is a right he is bound to insist upon at the first moment.”

In Dresel v. Jordan, 104 Mass. 415 , it was said: “In all cases it is sufficient for the seller upon a contract made in good faith if he is able to make the stipulated title at the time when, by the terms of the agreement or by the equities of the particular case, he is required to make the conveyance, in order to entitle himself to the consideration.”

The defendant concedes that there are precedents where a decree has been made on terms allowing a vendor to remove mortgages from the property (Oakey v. Cook, 41 N. J. Eq. (14 Stew.) 350), and where the vendor has perfected his title before bill filed, or before the hearing, or before the decree, or even after that time, when the vendor held a contract entitling him to such outstanding interest (Soper v. Kipp, 5 N. J. Eq. (1 Halst.) 383), but it is contended that no cases can be found where addir tional time has been decreed to afford an opportunity to acquire an outstanding title over which the vendor had no control.

*241 ■ AVhen the vendor, in a suit for specific performance, by reason of the silence or the conduct of the vendee, regarding the title to be conveyed, during the negotiations or in the progress of the cause, has lost an opportunity to perfect his title before decree, this opportunity will still be afforded to him by the allowance of a rea'sona’ble time even after the entry of the decree, if it can be done without hardship to the vendee.

It is apparent that by reason of the defendant’s delay in not bringing forth her objection until the very day of the hearing, an equity has arisen in favor of the complainant that he be not deprived of the period of time, which he would have had under the ordinary rules, and therefore we are constrained to hold that the allowance of thirty days after the making of, the decree within which to obtain a release for the alleged outstanding interest is not inequitable, and does not work hardship upon the defendant.

The decree should be affirmed.

On complainant’s appeal— For affirmance — The Chief-Justice, Garrisor, Swayze, Trerciiard, Parker, Berger, Yoorhees, Mirturr, Bogert, AArederburgh, Gray, Dill, Corgdor — 13.

For reversal — ArR00M—1.

On defendant’s appeal— For affirmance — The Chief-Justice, Garrisor, Swayze, Trerchard, Parker, Berger, Yoorhees, Mirturr, Bogert, ArREDERBURGH, YROOH, GRAY, DlLL, CORGDOR-M.

For reversal — Hone.