Collins v. Leary

• Decision Date: 16 September 1910
• Citation: 77 N.J.E. 529,77 A. 518
• Parties: COLLINS et al. v. LEARY et al.
• Court: New Jersey Supreme Court

77 A. 518

77 N.J.E. 529

COLLINS et al.

v. LEARY et al.

Court of Errors and Appeals of New Jersey.

Sept. 16, 1910.

Appeal from Court of Chancery.

Bill by Sarah D. Collins and others against Mary C. Leary and others to restrain an action of ejectment and for specific performance. From a decree for complainants, defendants appeal. Reversed in part

See, also, 74 Atl. 42.

McDermott & Enright, for appellants.

Robert H. McCarter, for respondents.

GUMMERE, C. J. The primary purpose of the hill in this case is to restrain an action of ejectment, brought by those of the defendants who are the widow and heirs at law of James D. Leary, deceased, to recover from the complainant, Sarah D. Collins, the widow of William A. Collins, deceased, the possession of a house and lot in the town of Bloomfield, and to compel the plaintiffs in the ejectment suit to execute a sufficient deed of conveyance of the property to Mrs. Collins. The bill also seeks to compel the defendants to account to the complainants for reasonable royalties payable for the use and enjoyment of a certain dredging bucket patented by William A. Collins in his lifetime. The complainants rest their right to the relief sought upon an oral contract made between James D. Leary and William A. Collins in the year 1890. The Vice Chancellor before whom the case was tried found from the proofs submitted at the hearing that a contract was made between Leary and Collins, by the terms of which a dredging company, of which Leary was the controlling spirit, was to have the use of the bucket patented by Collins, and that, as a consideration for such use, Leary was to convey to Collins' wife the Bloomfield house and lot, and also pay to him a money consideration, the amount of which was afterward to be determined upon by them. He further found that Collins and his wife entered into possession of the Bloomfield property under that agreement, and that Mrs. Collins has remained in possession thereunder ever since; but that no conveyance of it had ever been given to her, the deed having been withheld until the money consideration could be agreed upon. He further found that Collins had performed his part of the contract by allowing the dredging company to use the bucket from the time the contract was made down to his death, and that the company had continued to use the same under the contract ever since that event. He further found that the amount of the money consideration to be paid by Leary had never been agreed upon by the parties while living, nor by their representatives afterwards. On these findings he advised a decree that the defendants be perpetually restrained from further prosecuting their action of ejectment, that they be compelled to convey the Bloomfield property...