Faulkner v. Wassmer

• Decision Date: 08 July 1910
• Citation: 77 N.J.E. 537,77 A. 341
• Parties: FAULKNER v. WASSMER et al.
• Court: New Jersey Supreme Court

77 A. 341

77 N.J.E. 537

FAULKNER

v. WASSMER et al.

Court of Errors and Appeals of New Jersey.

July 8, 1910.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Bill by Kate Faulkner against John Wassmer and others. Decree for complainant, and defendants appeal. Reversed.

By a deed dated July 1, 1908, which was acknowledged and recorded on July 9, 1908, the appellants conveyed to Kate Faulkner, the respondent, a house and lot in the town of Irvington, subject to certain restrictions that were set forth at length in the deed, and which the grantee had been told by the grantors were also set forth in all deeds previously made for lots in the same tract. On the following day—i. e., July 10, 1908—Albert Faulkner, the husband of the grantee, who attended to the business for his wife, learned that this statement was untrue, and at once spoke to the vendors about it, intimating that he could make trouble, to which their reply was to "go ahead." The case shows that by August 1, 1908, at the latest, the grantee was fully aware of the falsity of her vendors' statement and of all the facts upon which her right to elect to rescind the sale arose. No election to rescind was made until Mrs. Faulkner filed her present bill announcing such election and offering to deliver back the property with certain additions and improvements made by her, for which repayment was demanded of the vendors in the following paragraph of the bill:

"Acting upon the faith of such representations, your orator changed her position, and did pay and lay out necessarily the following payments, repairs, and expenses in good faith upon the property so purchased by your orator, to wit: Cash paid for house and lot $3,600; extra ground purchased to one side as part of same transaction $175; building $175; grading, sodding, hedges, and clothes poles $20; woodbin shelves and benches in cellar $25, staining floor $35, window screens and doors $75, awnings $75, window shades $25, carpet (fitted to rooms) $250, hose connections $10, moving into house from Jersey City and prospective moving out $100, connecting gas stove $5, time and labor making repairs and alterations $150, fence across extra ground $10, ground and porch chairs $10, water meter $14, making a total of $5,154 paid out by your orator in purchase and establishing her family in and upon said lot and house, in addition to which your orator has been damaged and put to trouble and expense and time lost opportunities of getting other residence property at a reasonable figure, and has been otherwise damaged and incommoded by reason of having been unsuccessful (by reason of fraud) in establishing herself and family in a neighborhood where the adjoining and other lots are fully restricted; and in being compelled to break up and move elsewhere."

The decree of the court below was that the complainant was entitled to the relief sought for, and that "the prayer of her bill be and the same is hereby granted," that the sale be rescinded, and that the defendants repay to the complainant the purchase price with interest, and, in addition thereto, a further sum for improvements and so forth to be ascertained by a reference to a master. From this decree the defendants have appealed.

The following is the opinion of Howell, V. C. (orally):

"This bill is filed by Mrs. Faulkner, the wife of Alfred Faulkner, against John Wassmer and Henry M. Radcliffe for the purpose of rescinding a deed of conveyance of lands on Smith street, in the village of Irvington. The deed was dated on the 1st day of July, 1908, was acknowledged on the 9th day of July, 1908, and was recorded on the same day. It conveys to Mrs. Faulkner a lot of land on Smith street subject to certain restrictions which are fully set out in the deed, and are fully copied in the bill of complaint. The evidence shows that Mr. Faulkner first saw the land in question about the 4th day of May, 1908, and that within a day or two after that he saw Mr. States, who is a real estate agent, and who was specially authorized by Mr. Wassmer and Mr. Radcliffe to make sales of the lands in question. The bill charges that Mr. Wassmer and Mr. Radcliffe were partners in the enterprise, although the lands which they were disposing of were held in severalty by them. Mr. Faulkner had notice that the lands were restricted. He saw a large sign on one of the lots near the corner of Smith street and Clinton avenue which contained the Information that the land in that neighborhood was restricted land. In order to ascertain What the restrictions were, he went to see Mr. States, who showed him a typewritten copy of the restrictions, and stated to him that the land in that neighborhood was restricted in that manner, and Mr. Faulkner says in addition to that that Mr. States told him that the restrictions were matters of record: Some days after that, one evening while Mr. and Mrs. Faulkner and their daughter were examining the premises, Mr. Wassmer appeared, and there was still further conversation about the restrictions, and on those occasions, one or more of them, the extent of the tract of land owned by them and so restricted was talked about and the extent and area of the restrictions discussed. The evidence indicates to my mind that probably Mr. Wassmer and Mr. Radcliffe intended to restrict the whole tract by a general scheme which was embodied in the typewritten statement that they gave to Mr. States to show to intending purchasers. Now, that was the situation at the time that Mr. Faulkner paid the first $25. That I think was on the 5th day of May, 1908, and Mr. Faulkner is chargeable with notice of restrictions of some sort or other by the receipt which he took at that time, because that states that the conveyance was to be made subject to restrictions, a copy of which had been previously shown to him by Mr. States in his conversation with Mr. States; but I think, on the whole, that Mr. Faulkner acting on behalf of his wife, and Mrs. Faulkner acting on her own behalf, were justified in believing that the tract of land which was pointed out to them by Wassmer and by States as the tract of land that was owned by Wassmer and Radcliffe was restricted throughput in accordance with the restrictions that were shown to them by Mr. States. They were under no obligation (as contended by the complainant) to go to the public records to find out whether the restrictions were on record. They had the right to rely on the statements made to them by Mr. States and the owner of the property.

"Now I take it that there was a representation made by Mr. Wassmer and Mr. Radcliffe, either personally or through their agent, that this whole tract was restricted in accordance with the plan of restrictions disclosed by Mr. States. I think that was a statement which led the Faulkners to make the purchase. I think that was a statement of material fact, and that a misrepresentation in regard to it would entitle them to relief. Now, what is meant by restrictions, restrictions of the whole tract? Why surely not something that is temporary, but something that is permanent, something that runs with the land, something that is enforceable by somebody, and in this case I should say enforceable by Mrs. Faulkner, the purchaser of a portion of the restricted land. And it becomes a very material fact in the case, I think, to determine just exactly what is meant by the statement that was made to them by Mr. States and by the owners. I think that there was a statement made that the whole tract was restricted, and that they had a right to act upon the statement and to pay their money, and close up the deal, believing that that...