Bowen v. Pursel

• Decision Date: 18 October 1926
• Docket Number: No. 27.,27.
• Citation: 134 A. 665
• Parties: BOWEN v. PURSEL et al.
• Court: New Jersey Supreme Court

134 A. 665

BOWEN

v. PURSEL et al.

No. 27.

Court of Errors and Appeals of New Jersey.

Oct. 18, 1926.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Suit by James Bowen against George A. Pursel and others for specific performance. From a decree striking out an answer and a counterclaim (98 N. J. Eq. 184, 130 A. 830), defendants appeal. Reversed.

O. D. McConnel, of Phillipsburg, for appellants.

Edward P. Stout, of Jersey City, for respondent.

CAMPBELL, J. The decree appealed from orders the striking out of the answer and a counterclaim to a bill of complaint praying specific performance of a contract to convey real estate, and decrees specific performance of such contract.

The bill of complaint charges that appellants entered into an agreement in writing whereby they agreed to convey to the respondent a certain tract of land in the township of Oxford, in Warren county, N. J., free and clear of all incumbrances, and subject only to the right or interest of Arthur Gardner, a farmer tenant and occupant, whose term commenced April 1, 1925, and would expire April 1, 1926; that the consideration for such conveyance was fixed at $6,000, of which $600 had been paid, leaving a balance of $5,400 payable upon the execution and delivery of the deed, which was fixed for June 1, 1925; and that appellants refused to perform their said contract, although respondent was ready and had at all times tendered himself ready and willing to perform upon his part.

The contract bears date April 3, 1925, and the certificate of acknowledgment of respondent bears the same date. The appellants, who are the sellers mentioned in and who executed the contract, are George A. Pursel (single) Frank A. Pursel (single), Alice P. Skinner and Arthur M. Skinner, her husband, Catherine Schmidt and John Schmidt, her husband, Elizabeth P. Armstrong and Martin V. Armstrong, her husband, and Vida E. Cook and Carl Cook, her husband, and their certificates of acknowledgment, appearing upon the contract, bear date April 6, 1925.

By way of answer, the appellants admit the contract, but deny that the conveyance was to be free of all incumbrances, except the right of Gardner as tenant, and deny that the contract was duly acknowledged by them on April 6, 1925, and deny the validity of the agreement and the right of respondent to have specific performance thereof. They further admit that the total consideration was $6,000, of which $600 was paid on account, that the balance was payable upon the delivery of the deed, and they further admit that they refused to perform the contract and deliver the deed, and that they tendered a return of the $600, paid on account, and respondent refused to accept the same.

They further aver that they executed and acknowledged the said contract on Sunday, April 5, 1925, although the certificates of acknowledgment bear date as of Monday, April 6, 1925, and that respondent had notice of that fact on April 6, 1925, when a copy of such agreement was delivered to him; that the appellants Alice P. Skinner, Catherine Schmidt, Elizabeth P. Armstrong, and Vida E. Cook were married women on April 5, 1925, when they acknowledged their execution of said agreement; that the respondents paid $600 under the terms of such contract on April 4, 1925, to George A. Pursel, who had that sum on his own behalf and that of the other appellants when the contract was signed and acknowledged by them on Sunday, April 5, 1925; and, further, that the lands in question descended to the appellants George A. Pursel, Prank A. Pursel, Alice P. Skinner, Catherine Schmidt, Elizabeth P. Armstrong, and Vida E. Cook, as tenants in common, they being the only children and heirs at law of Emma Pursel, who died intestate in January, 1905, seized thereof, subject to the curtesy of her husband, David P. Pursel, therein; that one of the boundaries of said lands is the Pequest creek, which borders it for about a mile, the boundary line being the center of the creek; that David P. Pursel died June 8, 1914, and from the time of his death George A. Pursel, one of the appellants and tenants in common in said lands with the other appellants, with the acquiescence of his cotenants, took entire charge of said farm and two others, also belonging to them as tenants in common, and made leases and agreements respecting them; that he made several agreements with one Andrew J. Green, whereby he granted to him the privilege or right of fishing in that portion of Pequest creek adjoining said farm, and individually and for all the other tenants in common executed and acknowledged an agreement with said Green on June 12, 1922, whereby the exclusive right to fish said stream was granted to said Green for the term of 10 years from April 1, 1923, to April 1, 1933, at $200 for the term, and such agreement was recorded in the Warren county clerk's office, July 3, 1922; that $100 of the consideration for such fishing right was payable and was paid upon the execution of the agreement, the balance being payable April 1, 1928, and upon receipt of said first payment George A. Pursel deposited the same in a bank in an account in the name of himself and Frank A. Pursel, as administrators of ...