Gerba v. Mitruske
| Decision Date | 01 March 1915 |
| Citation | 84 N.J.Eq. 141,84 N.J.Eq. 79,94 A. 34 |
| Parties | GERBA v. MITRUSKE. |
| Court | New Jersey Supreme Court |
Appeal from Court of Chancery.
Suit by Mary Gerba against Mike Mitruske. Decree for complainant, and defendant appeals. Affirmed.
The following is the opinion of Vice Chancellor Howell:
I am satisfied, not only from the evidence adduced on the hearing, but from a study of the maps that were put in evidence, that the building on the Gerba lot stands wholly within the lines of the lot which was conveyed to her and her husband by Richnowsky and wife on August 10, 1895. Mitruske knew all about the property, because he occupied it as a tenant at the time he made the agreement to purchase it. What he undoubtedly bargained for was the lot as conveyed by Richnowsky, and while the lot described in the agreement is substantially smaller than that described in Mrs. Gerba's deed, yet Mrs. Gerba proposes to convey to him the same lot as was conveyed to her.
One of the objections raised by the defendant was that the building in question did not stand wholly upon the Gerba lot, that it encroached upon the adjoining property, which belonged to other people, and that therefore the complainant was not able to give title to the land so encroached upon. This I find to be a mistake, and the point must be decided in favor of the complainant.
There were two other objections made to the title. One was that Mrs. Gerba had made a prior contract to sell the same premises to a man named Kish; and the other was that a brewing company held a lease upon the premises, which was a subsisting document at the time of the Mitruske agreement. These no longer stand in the way of a specific performance of the contract. The Kish agreement has been released, and the brewing company's lease has expired by its own terms. There is now nothing in the way of a specific performance of the agreement, and I will advise a decree to that effect.
The details will have to be settled at the time of the settlement of the decree.
Thomas Brown, of Perth Amboy, and Freeman Woodbridge, of New Brunswick, for appellant. Adrian Lyon, of Perth Amboy, for appellee.
By the bill in this case the complainant, Mary Gerba, sought the specific performance of a contract made by her and the defendant for the sale of certain lands to him owned by her, and located in the city of Perth Amboy. The defense set up by the answer was that, at the time of the filing of the bill, the complainant was unable to make a good title, by reason of the fact that there was then in existence a prior valid agreement made by her with one Kish for the sale of the same premises, which had been duly recorded; and, second, that the building upon the lot which was the subject of the agreement extended beyond the property lines of the complainant, and upon lands belonging to a stranger. The agreement sought to be enforced was made on the 27th day of September, 1911, and provided for the conveyance of the property by a deed of general warranty, free from all incumbrances, on or before the 1st day of November then next ensuing. The agreement between the complainant and Kish was entered into on the 11th day of September, 1911, was recorded on the 17th day of...
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Caparell v. Goodbody
...of the title to the realty shall be determined as of July 22, 1942, and not as of the date of the decree (vide Gerba v. Mitruske, 84 N.J.Eq. 141, 94 A. 34); and (b) that in the event the defendant is sustained in her refusal to accept title, the complainants be decreed to repay to the defen......
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Hoffman v. Perkins
...is accorded an opportunity to clear such defects as might exist in the title by the time of the decree. In Gerba v. Mitruske, 84 N.J.Eq. 141, at page 143, 94 A. 34, 35, the Court of Errors and Appeals said: ‘The prevailing rule with relation to cases of this kind is that where the time of p......
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Gottlaub v. Cohen
...the contract, at the time it was entered into could not have been enforced by the defendant against the complaint. Gerba v. Mitruske, 84 N.J. Eq. 79 and 141, 94 A. 34, takes us on to the situation where the title of complainant vendor is perfected pending the suit. It is enough that there i......
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