Eisler v. Halperin

• Decision Date: 29 June 1916
• Citation: 98 A. 245
• Parties: EISLER et al. v. HALPERIN et al.
• Court: New Jersey Supreme Court

98 A. 245

EISLER et al.

v. HALPERIN et al.

Court of Errors and Appeals of New Jersey.

June 29, 1916.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Abraham Eisler and another against Solomon M. Halperin and another. From a judgment (85 N. J. Law, 139, 88 Atl. 831) of the Supreme Court reversing a judgment for plaintiffs, they appeal. Judgment of Supreme Court reversed, and that of district court affirmed.

Samuel F. Leber, of Newark, for appellants. Benjamin M. Weinberg, of Newark, for appellees.

PARKER, J. The suit was for the recovery back of money paid on account of the purchase price of real property by reason of defect in the title and inability to deliver possession. The district court gave judgment for the plaintiffs, and in the Supreme Court this was reversed, on the ground that the trust with which plaintiffs claimed the property was affected was not manifested by writing, as required by the statute of frauds, and therefore the testimony about it was irrelevant and immaterial. The court does not discuss the claim made by plaintiffs that defendants were unable to deliver possession, as found by the trial judge. The Supreme Court also held, on the authority of Tapscott v. McVey, 82 N. J. Law, 35, 81 Atl. 348,) that since the amendment of 1910 to section 30 of the District Court Act (C. S. 1962), which struck out the proviso withholding jurisdiction of actions wherein the title to lands and real estate shall come in question (see P. L. 1898, p. 564), district courts have had jurisdiction to pass on questions of title to land within the limits set by that section as amended. With this last conclusion we agree. The change in the statute is an abrogation to this extent of the rule laid down in Buttoro v. Whalen, 64 N. J. Law, 461, 45 Atl. 981, and the district court therefore properly entertained the action.

On the other points of the case, however, we reach a result different from that reached by the Supreme Court. So far as the facts are recited in the opinion of that court ubi supra, they need not be repeated. The rule is elementary that, in the absence of any qualifying conditions in the contract of sale (and there were none in this case), the purchaser is entitled to a good title. If the title be not such as the purchaser is entitled to under his contract, he may, after a proper tender, or without it in cases where it is waived or excused, rescind the contract and recover back in an action at law what he has paid on it. 29 Enc. Law (2d Ed.) 619; Meyer v. Madreperla, 68 N. J. Law, 258, 266, 53 Atl. 477, 96 Am. St. Rep. 536. The principle is recognized in this state by such cases as Weimar v. Path, 43 N. J. Law, 1; Buttoro v. Whalen, supra; Gerbert v. Trustees, 59 N. J. Law, 160, 35 Atl. 1121, 69 L. R. A 764, 59 Am. St. Rep. 578; and Mangonaro v. Kare, 84 N. J. Law, 408, 87 Atl. 94. We have in this state a line of cases holding that equity will not decree the specific performance of such a contract if it will result in compelling the purchaser to take a doubtful title. Doblss v. Norcross, 24 N. J. Eq. 327, a decision of Chancellor Runyon, is a leading example. Recent cases in this court are Van Riper v. Wickersham, 77 N. J. Eq. 232, 76 Atl. 1020, 30 L. R. A. (N. S.) 25, Ann. Cas. 1912A, 319, and Doutney v. Lambie, 78 N. J. Eq. 277, 78 Atl. 746. There may be some cases where equity would refuse relief to a vendor on account of doubtful features of title that nevertheless would not support a rescission by vendee and a suit for recovery back of purchase money paid; but, if there be a substantial defect, the vendee may rescind and recover back his payments and interest if the title has not passed. Illustrative cases are Moore v. Appleby, 108 N. Y. 237, 15 N. E. 377 (lack of proper parties in a partition suit); Fruhauf v. Bendheim, 127 N. Y. 587, 28 N. E. 417 (outstanding privilege of renewing a lease); and Simon v. Vanderveer, 155 N. Y. 377, 49 N. E. 1043, 63 Am. St. Rep. 683 (filed lis pendens and complaint stating a good cause of action, although unfounded in fact). In the case at bar plaintiffs had notice that Halperin held by a deed that was tantamount to a mortgage, i. e., given to secure money loaned, and under an oral agreement with Blacher, his grantor, that in case of a sale Halperin would account for all moneys received over and above the loan. The Supreme Court held that this was an oral trust and unenforceable under the statute of frauds. But what section 3 requires is that trusts shall be "manifested and proved" by...