Caparell v. Goodbody

• Citation: 132 N.J.Eq. 559,29 A.2d 563
• Decision Date: 29 December 1942
• Docket Number: 149/160.
• Parties: CAPARELL et al. v. GOODBODY.
• Court: New Jersey Court of Chancery

29 A.2d 563

132 N.J.Eq. 559

CAPARELL et al.

v. GOODBODY.

149/160.

Court of Chancery of New Jersey.

Dec. 29, 1942.

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Syllabus by the Court.

1. It is now definitely assured that aliens, who are subjects of a hostile country and nevertheless residing and lawfully conducting themselves and their affairs within this jurisdiction with the acquiescence and under the protection of our government, are not forbidden the use of our courts. The rule is at present only employed to prohibit the use of our courts by alien enemies in the accomplishment of some purpose designed to impede our prosecution of the war or to lend aid to the enemy.

2. A mere determination of the legal title to land is cognizable only at law. The Uniform Declaratory Judgments Law R.S. 2:26-66, et seq., N.J.S.A. 2:26-66 et seq., ordains that the courts "within their respective jurisdictions" may render declaratory judgments and decrees. Counsel cannot by mere silence or by express consent confer upon courts of equity the power to determine litigated matters which, under our judicial system, must be settled in a court of law.

3. This court may by decree and injunction enforce legal rights in real estate emanating from the express or implied trems of a contract among which is the power to compel specific performance. The prayer for this relief rescues the present bill.

4. In the absence of a treaty, the State has full power to legislate relative to land ownership.

5. The term "alien friends" as used in R.S. 46:3-18, N.J.S.A. 46:3-18, is determined to mean those subjects of a foreign state at peace with the United States, as distinguished from alien enemies which comprehends those subjects of a foreign state at war with the United States.

6. Our legislature has with uniformity perpetuated the distinction between alien friends and alien enemies and, in conferring rights in respect of the ownership of real estate upon alien friends, has expressly disclaimed any intention to prevent the sequestration, seizure or disposal of the real estate of an alien enemy pursuant to sovereign authority.

7. Under Article X, paragraph 1, of the State Constitution, N.J.S.A, the common law and statute laws then in effect, not repugnant to the organic law, remain in force in this State until they expire by their own limitation or are altered or repealed by the legislature.

8. At common law, aliens, though not permitted to take land by operation of law, could take by the act of the parties; but they took a defeasible title, subject to the right of the sovereign to deprive them of it, by inquest of office, resulting in "office found."

9. A state of war does not of itself operate to accomplish a transfer or forfeiture of the title to property held by an enemy alien in the absence of some governmental action to that end.

10. In our State, the interest or estate of an enemy alien in real property situate within our State is circumscribed by the principles of the common law, and during the period of war between the United States of America and the nation of which the alien is a subject, the enemy alien cannot extinguish the sovereign power of seizure, sequestration and escheat by conveying his interest or estate to a citizen before the sovereign power is exercised. The authority to modify the common law in this particular reposes in the legislature.

11. Although improbable that the title or possession of the defendant to this land will be disturbed by any governmental action, yet the defendant has bargained for a title which she can hold without rational anxiety and one, the marketable value of which is not degraded by reasonable and judicious doubt.

12. A court of equity will not compel a purchaser to accept a doubtful title.

Suit by Basil A. Caparell and another against Dora Goodbody for specific performance of an agreement to buy land and for a declaration of rights.

Decree in accordance with opinion.

Wesley L. Lance, of Clinton, for complainants.

Yawger & Dailey, of Newark, for defendant.

JAYNE, Vice Chancellor.

This cause is submitted for determination on the bill of complaint and an answer confessing the verity of all of the factual allegations of the bill. The topic predominantly in controversy is one of relative interest in the present period of national hostilities.

Concisely stated, the significant facts are that in October, 1937, the complainants, husband and wife, acquired by deed certain tracts of land situate in the Township of Clinton, Hunterdon County, New Jersey. They have ever since retained the lands as tenants by the entirety and the exercise of the rights of ownership and possession of the lands by the complainants has not been challenged in any action or proceeding initiated by any federal or state governmental authority or agency.

On June 5, 1942, the complainants, by an agreement in writing, obligated themselves to sell and convey by deed of warranty the lands and premises (together with specified live stock and designated farming equipment) to the defendant for the purchase price of $22,500. The date ultimately selected by the parties for the consummation of the sale was July 22, 1942, on which occasion the complainants tendered to the defendant the requisite deed and bill of sale.

The defendant thereupon declined to accept these instruments of title from the complainants and to pay the balance of the purchase price in pursuance of the terms of the agreement for the announced reason that she was advised that the title to the lands was then unmarketable.

It is acknowledged that the complainant, Basil A. Caparell, although a resident of New Jersey, was on July 22, 1942, and indeed is now, a subject of the Kingdom of Italy, with which nation the United States of America was then and is now at war.

Although the controversial issues introduce the concept of an "alien enemy," yet it is apparent that the present litigation is of a friendly temper, for it is stipulated (a) that the marketability of the title to the realty shall be determined as of July 22, 1942, and not as of the date of the decree (vide Gerba v. Mitruske, 84 N.J.Eq. 141, 94 A. 34); and (b) that in the event the defendant is sustained in her refusal to accept title, the complainants be decreed to repay to the defendant the down payment and certain specified sums to reimburse her for her incidental expenditures. The complainants invoke the aid of the Uniform Declaratory Judgments Law, R.S. 2:26-66 to 79, N.J.S.A. 2:26-66 to 9; both inclusive, and also pray for a decree of specific performance.

Whether propounded by counsel or not, certain questions which deserve some explanation seem to me to emerge from the acknowledged facts. Initially, is the complainant (the alien) privileged to institute and maintain a suit in this court? The primary rule of the English common law which excluded all alien enemies from the courts (except, perhaps, from the Court of Chancery, Y.B. 13 Edw. III f. 9) has in the passage of time experienced so many substantial relaxations as to cause its extinction intrinsically in the country of its common law origin. This rule in its original severity was never compatible with the American conceptions of justice and humanity, and it was quite promptly overrun by exceptions and modifications until it is now definitely assured that aliens who are subjects of a hostile country and nevertheless residing and lawfully conducting themselves and their affairs within this jurisdiction with the acquiescence and under the protection of our government, are not now forbidden to use our courts. Even in other respects, it may now be broadly stated that the rule is at present only employed to prohibit the use of our courts by alien enemies in the accomplishment of some purpose designed to impede our prosecution of the war or to lend aid to the enemy. Heiler v. Goodman's Motor, etc., Co., 1918, 92 N.J.L. 415, 105 A. 233, 8 A.L.R. 336; Posselt v. D'Espard, 87 N.J.Eq. 571, 100 A. 893; Tortoriello v. Seghorn, N.J.Ch., reported only in 103 A. 393. To one who desires to pursue the subject, the following citations may be of assistance: Clarke v. Morey, 10 Johns., N.Y., 69; 1 Coke, Littleton 129-b; Pollock and Maitland, History of English Law, Vol. 1, 2nd Ed., 459; Otteridge v. Thompson, 1814, Fed.Cas.No.10,618, 2 D.C. 108; Arndt-Ober v. Metropolitan Opera Company, 182 App.Div. 513, 169 N.Y.S. 944; Hughes v. Techt, 188 App.Div. 743, 177 N.Y.S. 420, affirmed 229 N.Y. 222, 128 N.E. 185, 11 A.L.R. 166, certiorari denied 254 U.S. 643, 41 S.Ct. 14, 65 L.Ed. 454; Daimler v. Continental Tyre & Rubber Co., Ann.Cas.1917C, 170, 204; recent cases, vide Petition of Bernheimer, 3 Cir., 130 F 2d 396 and Ex parte Kumezo Kawato, 63 S. Ct. 115, 87 L.Ed.——.

Moreover, no objection to the prosecution of the present cause has been interposed by the defendant's answer or otherwise. Heiler v. Goodman's Motor, etc., Co., supra. The presumption is therefore indulged that the alien complainant is a resident peaceably and lawfully conducting his activities under the protection of our laws. In such status, he is entitled to sue, unless restrained by some legislation or valid governmental proclamation.

Under date of January 31, 1942, the Attorney General of the United States issued the following statement to clarify the rights of natives, citizens or subjects of enemy countries:

"Any person who is an 'enemy' for purposes of the Trading with the Enemy Act is prohibited by Section 7(b) of that Act [50 U.S.C.A.Appendix § 7(b)] from prosecuting suits in any court within the United States prior to the end of the war.

"For purposes of the Trading with the Enemy Act, an 'enemy' is defined by Section 2 [50 U.S.C.A.Appendix § 2] to mean any person, of any nationality, resident within the territory of, or the territory occupied by, any nation with which the United States is at war. Under subdivision (c) of that Section, the President is...