Doutney v. Lambie

• Court: New Jersey Supreme Court
• Writing for the Court: PARKER, J.
• Citation: Doutney v. Lambie, 78 N.J.Eq. 277, 78 A. 746 (N.J. 1911)
• Decision Date: 12 January 1911
• Parties: THOMAS H. DOUTNEY, complainant and appellant, v. FRANK D. LAMBIE, defendant and respondent

78 A. 746

78 N.J.E. 277

DOUTNEY

v. LAMBIE.

Court of Errors and Appeals of New Jersey.

Jan. 12, 1911.

Syllabus by the Court.

Appeal from Court of Chancery.

Bill by Thomas H. Doutney against Frank D. Lambie. Decree of dismissal, and complainant appeals. Affirmed.

This was a bill for specific performance of a contract for exchange of real property. The defendant's property is in this state, but complainant's is in the city of New York in the district known as Morrisania. Defendant applied to a title guarantee company for a guaranty of complainant's title, which that company refused unless the question of encroachment of the front wall of the building on Park avenue were excepted from the guaranty. Defendant not being satisfied with a guaranty on those terms refused to accept complainant's deed, and the present suit was brought to compel him to do so. The hearing was had before Vice Chancellor Stevenson who dismissed the bill on the ground that the title offered by complainant was unmarketable.

Roe & Runyon, for appellant Robert M. Boyd, Jr., for respondent.

PARKER, J. (after stating the facts as above). Our examination of the case and briefs (there was no oral argument) satisfies us that the decree in the court below was correct. The question of marketability was one of fact, and related to the exact location of the line of Park avenue, on which complainant's building fronted. If the line was where complainant's witnesses put it, the building did not encroach upon the street, and the title was consequently good; if, on the other hand, it was where defendant's witnesses located it, there was an encroachment by the front wall of the building of approximately two inches on the highway, which the city authorities might order removed at any time. That such a condition of things if existing in fact would constitute a substantial objection to the title if the land were in this state, cannot be doubted. The element of compensation for the expense of making over the front wall, if indeed that could be done without serious detriment to the property, was not in the case, complainant resting on his bill as drawn on a perfect title, going to trial on that issue, and a subsequent amendment for the purpose of bringing it into the case being denied. The question for decision, therefore, was whether the complainant's title was so plainly marketable as to require a court of equity in the exercise of a legal discretion, to decree specific performance.

In disposing of this question the Vice Chancellor, following his own decisions in Barger v. Gery, 64 N. J. Eq. 263, 53 Atl. 483, and Potter v. Ogden, 68 N. J. Eq. 409, 59 Atl. 673, held "that where the alleged defect in the title was in respect of a fact the title cannot be regarded as marketable, unless the proof in favor of the title as to the point of fact is so clear that a court of law would direct a verdict in favor of the title in case of a trial by a jury; and, secondly, that it must also appear that the evidence which shows the title to be good, which establishes the facts on which a good...