17 N.J.Eq. 263 (N.J.Ch. 1865), Huffman v. Hummer

Citation:17 N.J.Eq. 263
Attorney:Mr. J. T. Bird and Mr. G. A. Allen, for defendant, Mr. Van Fleet and Mr. Wurts, for complainant, contra.
Court:Superior Court of New Jersey

Page 263

17 N.J.Eq. 263 (N.J.Ch. 1865)




Court of Chancery of New Jersey.

May Term, 1865

1. In a bill by a purchaser of real estate, to enforce the specific performance of a contract for the sale and conveyance thereof, an averment of tender of the purchase money, on the day designated for the execution of the contract, is not necessary.

2. As a general rule, in equity, time is not deemed to be of the essence of the contract, unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract. Equity holds time to be prima facie non-essential, and will enforce the specific performance of agreements, after the time for their performance has been suffered to pass by the party asking for the intervention of the court.

3. Equity regards a contract for land, of which a specific execution will be decreed, for most purposes, as if it had been specifically executed. The purchaser is regarded as the equitable owner of the land, and the vendor of the money.

4. Where, upon a bill filed to compel the performance of a contract for the conveyance of real estate, an injunction issued to prevent the defendant from dealing with the property during the pendency of the suit, an objection that time is of the essence of the contract, will not avail the defendant upon a motion to dissolve the injunction.

5. Upon a motion to dissolve an injunction, the court will not undertake to determine points of doubt or difficulty upon which the merits of the case may depend, but will leave them to be determined at the final hearing, when the evidence is fully before the court.

6. When the answer admits the material allegations upon which the equity of the complainant's bill rests, but sets up new matter in avoidance, the injunction will not be dissolved.

7. In many cases, the court will interfere and preserve property in statu quo during the pendency of a suit in which the rights to it are to be decided, and that without expressing, and often without having the means of forming an opinion as to such rights.

8. It is not necessary to the continuance of an injunction, that it should be clear that the complainant will succeed at the hearing. It is sufficient if there is ground for supposing that relief may be given.

9. It is the duty of a complainant holding an injunction, to prosecute his claim with all diligence.

Mr. J. T. Bird and Mr. G. A. Allen, for defendant, in support of the motion.

Mr. Van Fleet and Mr. Wurts, for complainant, contra.

Cases cited by defendant's counsel. 1 Story's Eq. Jur., § 742, 769; King v. Morford, Saxton 281; Stoutenburgh v. Tompkins, 1 Stockt. 332-5-6; King v. Hamilton, 4 Peters 311; St. John v. Benedict, 6 Johns. Ch. R. 111; Omerod v. Hardman, 5 Vesey 733; Goring v. Nash, 3 Atk. 186; Joynes v. Statham, Ibid. 388; Johnson v....

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