Corby v. Drew

• Decision Date: 08 February 1897
• Citation: 36 A. 827,55 N.J.E. 387
• Parties: CORBY et al. v. DREW et al.
• Court: New Jersey Court of Chancery

36 A. 827

55 N.J.E. 387

CORBY et al.

v. DREW et al.

Court of Chancery of New Jersey.

Feb. 8, 1897.

Bill by Emmons B. Corby and others against Stephen L. Drew and others for specific performance. Heard on bill Decree for defendants.

James M. TrimWe, for complainants.

Robert H. McCarter, for defendants.

STEVENS, V. C. This suit is brought to enforce the specific performance of an agreement to convey 50 acres of mountain land, situate at Pompton, for the consideration of $500. The title was vested in Stephen H. Drew, Thomas F. Drew, and Rhoda E. English, who each, at the time the agreement was made, owned an undivided sixth interest therein in fee simple; in Cynthea M. Rowe, who owned an undivided two-sixths interest therein in fee simple; and in Eliza Drew and her son George, who together owned the remaining one-sixth, Eliza having a life interest therein, and George the remainder. The agreement bears date on May 24, 1893. Although it stipulates for a conveyance of the entire fee, it is signed neither by the wives of Stephen and Thomas, nor by the husbands of Mrs. English and Mrs. Rowe, nor by George. It is signed by Stephen and Thomas Drew, by Mrs. English, and by Mrs. Rowe, who are brothers and sisters, and by Eliza Drew, who is the widow of Andrew Drew, a deceased brother. Performance is resisted: First. On the ground that it would be inequitable to enforce the agreement against the defendants, for the reason that between the day it bears date (May 24, 1893) and the day fixed for its performance (July 24, 1893) it was discovered that the land was much more valuable than the owners supposed it was. And, second, on the ground that the court cannot compel a conveyance from Mrs. English and Mrs. Rowe, because they are married women; that it cannot compel a conveyance from George Drew and the respective wives of Stephen Drew and Thomas Drew, because they never signed the agreement; and that, consequently, there ought not to be any decree whatever against any of the parties, on the principle that, where a large part of the property or a large interest in the property cannot be conveyed, the court will not decree a specific performance as to any of it, but will leave the parties to their remedy at law. Fry, Spec. Pert. 141.

The first ground of defense is maintainable only upon proof that the land is really much more valuable than it was supposed to be by the vendors at the time they executed the agreement. I cannot find any such proof in the case. The proof amounts to no more than this: That the vendors, all but one of whom were brought up on an adjoining farm, knew this land to be rocky mountain land, and believed it to be valuable only for the wood that could be taken from it; that whether the rock was granite or trap or limestone or anything else they did not know; that the vendees, who were quarrymen, and known by the agent of the vendors to be such, knew that it contained a superior kind of granite, worth, according to the witness Brown, 85 cents a cubic foot delivered on the cars; and that the vendors bought it because of this knowledge. The defendants' case goes no further. No evidence was given as to what this stone was worth in the ground, and no attempt was made to show that land containing this stone was worth more per acre than complainants had agreed to pay for it There was evidence to the effect that this same kind of granite was found in another quarry near by, and the defendant Corby testified, without much knowledge on the subject, however, that the whole of Pompton was underlaid with it. I think it is plain that this part of the defendants' case is not sustained by the proofs.

It was also insisted on this branch of the case that the complainants should have communicated to the vendors all that they had discovered, and that their failure to do so was such concealment as would in itself prevent specific performance. I can find no proof of concealment sufficient to bar a decree for specific performance. The evidence is that, before they entered into the agreement, complainants received permission from Mr. Rowe, the husband of the defendant Cynthia, who was acting for the vendors, under powers extremely vague, to make blasts, with a view of testing the character of the rock. These blasts, which they made before purchasing, proved satisfactory. Exactly what they told Mr. Rowe they had found is a matter in dispute. While they probably did no more than say to him that the rock would answer their purpose, they did not conceal from him the fact that they were buying it to quarry on.

The letter of December 14th, written by Mr. Corby to Mrs. Rowe, on which counsel laid considerable stress in his argument, in view of the fact that Rowe was informed of the use which complainants proposed to make of their purchase, appears to me to be without significance.

I now come to a question of considerable difficulty, viz. how far the court may, under our statutes, compel a married woman specifically to perform a contract to convey land. This question is presented in two phases. The husband of Mrs. English, the owner of one-sixth, refused to sanction the contract ab initio. The husband of Mrs. Roe, on the contrary, was the agent who effected the sale; and, while he did not join in the agreement, he so far committed himself to it in writing as to give a receipt for $100 of the purchase money, which he declared to be "on acct. on sale of fifty acres of mountain land belonging to the estate of the late Henry Drew, and being situate on Federal hill, Pompton township; contract price, $500," and which he signed, "Francis Rowe." At common law, the wife could only pass her freehold estate by fine and common recovery. 2 Kent, Comm. 150. It was said by Chancellor Green in Moore v. Rake, 26 N. J. Law, 578, that previous to the year 1743 a feme covert could not make a valid conveyance of her interest in land in the then colony of New Jersey; that by an act of that year it was provided that all deeds of conveyance made or to be made by a man and his wife of the estate of the wife, where acknowledged in a particular manner before certain officers, should be recorded, and should be good and sufficient to convey the lands thereby intended to be conveyed. The construction there put by the court of errors upon that act, and upon the act in Paterson's Revision, was that the deed of a married woman, though duly acknowledged, made without the co-operation of her husband, would not pass her title to real estate. The decision was placed, not upon any defect in the acknowledgment of the deed then under consideration, but upon the fact that the husband had not joined with the wife in executing it. This appears to be decisive of the case of Mrs. English, whose husband has always refused to join, and who has never done anything which the court can take hold of in order to compel him to join; for it is expressly provided by the fourteenth section of the married woman's act that "nothing in this act contained shall enable any married woman to execute any conveyance of her real estate * * * without her husband joining therein as heretofore," except in those instances for which express provision is made, of which the present is not one. Surely, the court will not compel a married woman to make a conveyance which she has always been under a disability to make, and which, when made in point of form merely, will be an...