Hollander v. Abrams

• Decision Date: 04 February 1926
• Citation: 132 A. 224
• Parties: HOLLANDER v. ABRAMS.
• Court: New Jersey Court of Chancery

132 A. 224

HOLLANDER

v. ABRAMS.

Court of Chancery of New Jersey.

Feb. 4, 1926.

(Syllabus by the Court.)

Suit by Albert Hollander against Anna Ruskin Abrams, also known as Anna Ruskin, for specific performance of an agreement for sale of land. On motion to strike out the answer and to enter a decree, Motion granted, and decree advised.

Leber & Ruback, of Newark, for complainant.

Milton M. Unger, of Newark, for defendant.

BERRY, V. C. This is a bill for specific performance of an agreement for the sale of land. The complainant is the vendee and the defendant the vendor. The sole defense to the bill is that the defendant, at the date of the contract, was a married woman and that the contract was executed and acknowledged by her alone, without the joinder of her husband. The matter comes before me on motion to strike out the answer and enter decree. While the answer admits most of the facts set out in the bill of complaint, the solicitors of the respective parties have filed a stipulation containing an agreed state of facts for the purposes of this motion. From this stipulation it appears that on May 22, 1925, the defendant, under the name of Anna Ruskin, executed and acknowledged the written agreement which is the subject of this suit and that at that time she represented herself to be a widow and was so described in the agreement of sale. The contract was duly executed by the complainant and he thereupon paid the sum of $500 on account of the purchase price and in accordance with the terms of the agreement The time fixed for closing was July 1, 1925. but, owing to the absence of the defendant at that time, settlement was postponed, by mutual agreement, until August 5, 1925. On August 4, 1925, there was submitted to the attorney of the complainant, for his approval, a deed for the property the subject of the sale, which deed was executed and acknowledged by the defendant under the name of Anna Ruskin Abrams, and also by one Abraham Abrams, who was described in the deed as the husband of the defendant. This deed was approved by the complainant's attorney and returned to the attorney of the defendant. On the following morning the parties, with their attorneys, met for the purpose of settlement. The complainant tendered the balance of the purchase price, but the defendant declined to receive it, and instructed her attorney not to deliver the deed, and refused to perform the agreement, claiming that she was not obliged to do so because at the time of making the contract she was a married woman and the contract was not joined in by her husband. Neither the complainant nor his attorney knew the defendant had a living husband until the submission of the deed for approval as above mentioned; the complainant relying on the defendant's representation that she was a widow. The property which is the subject of the agreement was acquired by the defendant by deed prior to her marriage to Abraham Abrams. At the time of the execution of the agreement, she was living in a state of separation from her husband, and divorce proceedings were then pending between them, and a final decree, dissolving the bonds of matrimony, was entered in that suit on July 7, 1925. No issue was ever born of the marriage.

This motion is based upon the following grounds as stated by the solicitor of complainant:

(1) The defendant is estopped in equity, because of her fraud, from setting up the defense of coverture.

(2) The disability of coverture having been removed before the time fixed for performance, the contract is enforceable against the defendant as a feme sole.

(3) That a sufficient concurrence by the defendant's husband in her said agreement is evidenced and manifested by the deed of conveyance executed by him, together with the defendant, which deed of conveyance the defendant, after its due execution, refused to deliver to complainant.

(4) There was no necessity for the husband's concurrence in the agreement in question because section 8p of the Married Women's Act qualifies and enables a married woman, circumstanced as was the defendant at the time of the making of the contract, to convey without the concurrence of her husband.

The defendant counters with the following propositions:

(1) The doctrine of estoppel is inapplicable and cannot be invoked in this case.

(2) Although the divorce from her husband may have operated to make the defendant a feme sole as to contracts made subsequent to the divorce decree, nevertheless, contracts made prior to the dissolution of the marriage ties, being invalid and unenforceable at that time, carry that "taint" with them thereafter, and consequently are unenforceable.

(3) It is elementary that a deed, even though duly executed with all due form and solemnity, is a nonentity, unless its execution is attended by delivery.

(4) In view of the foregoing, section 8p of the Married Woman's Act has no application.

I will consider these opposing propositions in their order:

1. The first question which arises is as to the application of the doctrine of equitable estoppel under the circumstances of this case. The general rule of equitable estoppel as applied to married women is stated by Professor I'omeroy in his work on Equity Jurisprudence (volume 2, § 814, 4th Ed.) thus:

"Upon the question how far the doctrine of equitable estoppel by conduct applies to married women, there is some conflict among the decisions. The tendency of modern authority, however, is strongly towards the enforcement of the estoppel against married women as against persons sui juris, with little or no limitation on account of their disability. This is plainly so in states where the legislation has freed their property from all interest or control of their husbands, and has clothed them with partial or complete capacity to deal with it as though they were single. Even independently of this legislation there is a decided preponderance of authority sustaining the estoppel against her, either when she is attempting to enforce an alleged right or to maintain a defense."

That the doctrine of estoppel is applicable to married women in New Jersey, both at law and in equity, is shown by the following cases: Brinkerhoff v. Brinkerhoff, 23 N. J. Eq. 477; Besson v. Eveland, 26 N. J. Eq. 468; National Bank v. Hamilton, 34 N. J. Eq. 158; Francis v. Lawrence, 48 N. J. Eq. 508, 22 A. 259; Ruckelschaus v. Oehme, 48 N. J. Eq. 436, 22 A. 184; Hamlen's Administrator v. Bennett, 52 N. J. Eq. 70, 27 A. 651; Ruckelshaus v. Borcherling, 54 N. J. Eq. 344, 34 A. 977, affirmed 55 N. J. Eq. 589, 39 A. 1113; Wheeler & Wilson Mfg. Co. v. Litwin, 57 N. J. Eq. 660, 43 A. 1098; Mertens v. Schlemme, 68 N. J. Eq. 544, 59 A. 808; Mayer v. Kane, 69 N. J. Eq. 733, 61 A. 374; Neslor v. Grove, 90 N. J. Eq. 554, 107 A. 281; National Bank v. Rutter, 91 N. J. Law, 424, 104 A. 138, affirmed 92 N. J. Law, 621, 106 A. 371.

It is contended by the defendant, however, that the doctrine of estoppel is not here applicable and he cites as authority for this contention the case of Belmar Bank v. Shumard, 91 N. J. Law, 379, 103 A. 1001, but that case, whatever may be its authority at law, is not, in my judgment, authority for the proposition that a married woman may not be estopped in equity. In that case, which was a suit at law on a promissory note, it was held that a married woman was not liable as an accommodation indorser and that she was not estopped from setting up coverture as a defense by her representation made at the time of the indorsement that she was then a widow; but that was an action at law and the weight of this decision is now questioned by counsel for complainant, in view of the later case of La Rosa v. Nichols, 92 N. J. Law, 375, 105 A. 201, 6 A. L. R. 412.

In the Shumard Case, Justice Swayze said:

"The case of a married woman is like the case of an infant, exeept so far as her incapacity has been removed"

—and then refers to the case of Parker v. Hayes, 39 N. J. Eq. 469; Id., 41 N. J. Eq. 630, 7 A. 511, for a statement of the rule of application of the doctrine of estoppel to infants. In the former case Vice Chancellor Van Fleet said (at page 478):

"It is no answer, at law, to the fact of infancy, that the person dealing with the infant was induced to do so by the infant's fraudulent representation that he was of full age. * * * The rule in equity, however, is different. In equity, in the language of Lord King, infants have no privilege to cheat men. If an infant obtains property by fraudulently representing himself to be of full age, equity will compel him either to pay for the property or to surrender it. * * * The justice of this rule is manifest. At law, an infant is incompetent to make a valid contract except in certain exceptional instances. He may be old enough and cunning enough to contrive and carry out a fraud, yet, if he does, the law is powerless to give redress. The law cannot prevent him from using the shield which was intended simply as a protection, as a cover for his own cheating. Equity, to correct this wrong, steps in and declares that when an infant induces another to deal with him by fraudulently representing himself to be of full age, that, to the extent that the contract is just and fair to him, and also to the extent to which it is necessary to hold him to it to prevent him from reaping the fruits of his fraud, he shall be compelled to abide by it."

On appeal, the Court of Errors and Appeals approved this statement of the equitable rule of estoppel.

In La Rosa v. Nichols, 92 N. J. Law, 375, 105 A. 201, 6 A. L. R. 412, the Court of Errors and Appeals held, however, that the doctrine of estoppel was applicable at law to an infant who had represented himself to be of full age and had thereby obtained credit. Chancellor Walker, who wrote the opinion, said:

"If this suit were in the Court of Chancery, a plea of infancy in the circumstances of this case would not be tolerated."

If the common-law disability of a married...