Carey v. Brown

• Decision Date: 11 April 1921
• Docket Number: No. 40/181.,40/181.
• Citation: 113 A. 499
• Parties: CAREY v. BROWN et al.
• Court: New Jersey Court of Chancery

113 A. 499

CAREY

v. BROWN et al.

No. 40/181.

Court of Chancery of New Jersey.

April 11, 1921.

Suit by Elizabeth Carey against Thomas H. Brown and others. Decree for accounting, etc., to be settled upon application and notice.

Dougal Herr, of Hoboken, for complainant.

James A. Gordon, of Jersey City, for defendants.

LEWIS, V. C. The bill is filed to compel the defendants Brown and Reilly to turn over to the complainant 117 shares of stock of the First National Bank of the town of Union, and to restrain its disposition otherwise, alleged to have been delivered to the defendant Brown by one John Conway, in part payment of the consideration for a transfer of certain real estate of which Brown was the equitable owner, but the legal title to which was held by the defendant Reilly. Under the terms of the contract of sale, a deed for the property was to be delivered to Conway upon his performing the conditions therein required of him. Brown says that Conway not only failed to comply with the provisions of the contract within the time fixed, but that ultimately, after the date for settlement had been postponed a number of times to enable Conway to comply, Conway told Brown that he was unable to perform his part of the contract, and that he could not go ahead with it. At that time Brown tendered a delivery of the deed to Conway, but Conway was unable to comply with his part of the contract and accept delivery. Brown thereupon carried the property several years, during a period of great depression in the real estate market, and was unable to dispose of it until some time in the year 1916, when he sold it at a loss. He was also obliged to meet and pay off certain obligations and charges upon the property, and make advances of cash for the benefit of Conway, and to assume certain of his obligations. This is, to some extent, disputed by Conway, but I am inclined to accept the testimony of Brown in this respect. Later Conway assigned whatever interest he may have claimed to have in the stock in question to the First National Bank of the town of Union, and it, in turn, assigned the same to the present complainant, Elizabeth Carey, but without consideration.

The theory of the complainant is that Brown and Reilly, having failed to convey title to the real estate to Conway, and having sold the property to a third person, are not entitled to retain in equity and good conscience the stock which was so deposited by Conway with Brown in part payment of the consideration.

It appears that a short time after the difficulties arose between the parties, in 1912 or thereabouts, a suit in trover and conversion was brought against Brown in the law courts, but that it was discontinued by agreement between the parties, after two complaints filed in the cause had been stricken out by the court, as failing to set forth a legal cause of action.

The present bill was filed on July 12, 1915, and meantime the statute of limitations has run against the right to enforce complainant's claim at law. This, however, would present no difficulty, in view of the Transfer of Causes Act of 1012 (Supp. Comp. Stat. p. 1252), which permits the Court of Chancery, even when the statute of limitations will bar a suit at law, if a suit has been brought in the Court of Chancery prior to the six years, by mistake, to transfer the cause over to the law court, with like effect as though the action had been originally commenced there within a competent period.

But I am inclined to hold that complain...