Et Ux. v. Lieberman

• Decision Date: 23 March 1949
• Docket Number: No. 169-6.,169-6.
• Citation: 64 A.2d 904
• Parties: FREEDMAN et ux. v. LIEBERMAN et al.
• Court: New Jersey Superior Court

64 A.2d 904

FREEDMAN et ux.

v.LIEBERMAN et al.

No. 169-6.

Superior Court of New JerseyChancery Division.

March 23, 1949.

Syllabus by the Court.

1. Where an agreement for the sale of real estate calls for a conveyance free and clear of all encumbrance, an existing easement in and over said land constitutes a non-compliance with the agreement.

2. Mere non-user of an easement arising out of an express grant is in and of itself not sufficient to destroy such easement.

3. In order to destroy an easement arising out of an express grant, for non-user, there must be conduct on the part of the owner of the servient estate, defiant of the easement and the non-user must result from such defiant conduct.

4. For an abandonment of an easement there must be evidence of an act of abandonment and an intention tantamount to abandonment.

5. Title to real estate is not marketable when it is not such as to make it reasonably certain that it will not be called into question in the future.

6. An easement in land is a legal estate.

7. A ‘restriction’ resulting from a restrictive covenant affecting land is not a legal estate but is a creature of equity arising out of contract.

Suit for rescission of agreement to sell realty and for other relief by Isadore Freedman and Essie Freedman, his wife, against Morris I. Lieberman and others.

Judgment for plaintiffs.

John B. Baratta, of Atlantic City, for plaintiffs.

Bertram M. Saxe, of Atlantic City, for defendant Rebecca Lieberman.

Benjamin C. Kligerman, of Atlantic City, for defendants Morris I. and Charlotte Lieberman.

HANEMAN, Judge.

This is a suit seeking the rescission of an agreement to sell a certain parcel of real estate in the City of Atlantic City, New Jersey, and as well seeking a declaration of a vendee's lien on the premises agreed to be sold for the amount of the deposit paid on account of said agreement, and the expenses incurred by the vendee for search fees. The complaint also seeks to have the agreement of sale surrendered and cancelled. The plaintiffs' action for cancellation is grounded on equitable and legal fraud in the inducement of the contract and for such a defect in title, in violation of the terms of the agreement of sale, as would warrant refusal of specific performance.

It is to be noted that this action seeks as relief more than an attempted recovery of the money paid on account of the purchase price, and under the allegations in the complaint, the jurisdiction of the Chancery Division of the Superior Court is properly invoked. Richeimer v. Fischbein, 107 N.J.Eq. 493, 153 A. 514; Reilly v. Griffith, 141 N.J.Eq. 154, 56 A.2d 502.

The agreement provided for the sale of a parcel of real estate at the southeast corner of Connecticut and Oriental Avenues, Atlantic City, New Jersey. Paragraph 4 of said agreement reads as follows:

‘4. The title to be delivered shall be a marketable title and shall be free and clear of all encumbrances including municipal liens and assessments and liability for assessments for improvements now constructed (except as herein stated), this clause to be operative as of the date of this agreement, and the title is to be subject to all existing restrictions of record, the seller, however, guarantees that there are no restrictions in any conveyance or plans of record affecting the said premises, which will prohibit the use and/or occupancy thereof as an apartment house and the premises shall be conveyed in the same condition as the same now are, reasonable were and tear excepted.’

At the time and place set for settlement the plaintiffs attended but refused to complete the purchase, for a number of reasons. One of these reasons, as set forth, was that the defendants could not deliver ‘a marketable title * * * free and clear of all encumbrances.’ The foundation of the contention lies in the following set of facts.

By deed dated December 5, 1854, Camden and Atlantic Land Company conveyed a tract of land situate in the City of Atlantic City, New Jersey, to the United States of America. Said tract, as described, contained 2.31 acres.

By deed dated August 16, 1878, the City of Atlantic City and various other individuals executed a deed to the United States of America containing the following phraseology:

‘Whereas the party of the first part are the owners of lands situate in Atlantic City in the County of Atlantic and State of New Jersey fronting on the sea in the vicinity of the Light House belonging to the United States which lands comprise portions of lots or blocks numbers 7, 8, 10, 14, 15, 17, 18, 116, 117 and 118, as known and designated on a Map entitled ‘Plan of Atlantic City’ and also the ends of the Streets of Atlantic City terminating at the Ocean, And Whereas it is the purpose of the United States of America under the supervision of the Light House Board a bureau of the Treasury Department to adopt and put in force and effect precautionary measures to preserve the Light House and other property of The United States at Atlantic City and prevent the encroachments of the Sea thereon.'

‘And whereas in carrying out such purposes it will become necessary for the United States to enter upon occupy and exercise control over the said property of the party of the first part and the shores in front of the same And Whereas in order to promote the purposes aforesaid and to prevent delay in carrying out the same and to avoid all controversies as to the right of the United States to enter upon said lands and the lands under water lying in front of the same for the purpose of prosecuting said work the party of the first part have applied to the Riparian Commissioners for a grant of said lands under water to be made to them as riparian owners in such form as to secure to the United States the full and exclusive right to use the same for the purpose aforesaid.’

‘Now Therefore this indenture witnesseth that the said party of the first part * * * have granted bargained sold and conveyed and by these presents do grant, bargain sell and convey unto the said party of the second part and to their assigns the full and exclusive right to erect maintain and keep upon the said lands and upon and along the shore in front of the same and upon the lands under water between said lands and the exterior line established by the Riparian Commissioners all such erection barriers breakwaters or other works as in the judgment of the Light House Board are or shall become necessary to protect the property and buildings of the United States now erected or hereafter to be erected a Atlantic City and prevent the further encroachment of the Sea in and upon the shore and the abrasion thereof and in the erection and maintaining of said works to pass freely and without obstruction at all times upon and over the said lands and to grade the same in such manner as the character of the works and structures to be made by the United States may require. And the said party of the first part do severally and respectively for themselves covenant and agree to and with the said party of the second part and their assigns that they the party of the first part their heirs, successors and assigns will not do or suffer to be done any act or thing whereby the United States of America their agents servants and workmen shall be in any manner hindred or obstructed in the erection and maintaining of such intended works and that they will not claim any damage or compensation for the lands necessarily taken or occupied for the same.’

The ‘property and buildings' referred to in this conveyance as being owned by the United States of America was the tract described in the deed of December 5, 1854.

It is admitted that the locus in quo was encompassed within the description contained in the deed of August 16, 1878 and that title to said parcel was obtained by the defendants through mesne intervening deeds from one of the grantors in said conveyance of 1878.

Plaintiffs contend that as a result of this conveyance the title held by the defendants was neither marketable nor free and clear of all encumbrances and, as a matter of fact, that said conveyance created an easement in the lands here involved.

The historical background which necessitated the obtainance of this alleged easement is amply and aptly set forth in Levy v. C. J. Adams Co., 103 N.J.Eq. 470, 143 A. 621. In that case the court held that the conveyance of 1878 created an easement over lands similarly situated to that in question, and that such an easement was a violation of the agreement to convey free and clear of encumbrances.

It must be generally recognized that an existing easement in the lands to be conveyed is a violation of the terms of an agreement to convey real estate free and clear of all encumbrances. Garber v. Stern, 100 N.J.Eq. 470, 135 A. 550; Bier v. Walbaum, 102 N.J.L. 368, 131 A. 888.

There is no dispute between the parties as to the original effect of the conveyance of 1878. The defendants do,...