Miller v. Headley

• Decision Date: 14 January 1932
• Parties: MILLER v. HEADLEY et al.
• Court: New Jersey Court of Chancery

158 A. 118

MILLER

v. HEADLEY et al.

Court of Chancery of New Jersey.

Jan. 14, 1932.

Syllabus by the Court.

1. A contract for the sale of land signed by the vendor only ceases to be unilateral when the vendee files his bill for specific performance.

2. Such a contract complies with the statute of frauds if, from its terms, it appears that it is intention of vendor to convey, although an agreement to sell is not specifically stated, and if the lands, although not particularly described, can be ascertained with reasonable certainty.

3. Such a contract is not uncertain or indefinite because no place or hour is named for closing title, if the parties subsequently agree on a place, date, and hour; or for failure to state the nature of the estate to be conveyed and the kind of deed to be given, because a conveyance in fee by deed of bargain and sale will be supposed to have been intended.

4. Tender by the vendee of the purchase price in cash is unnecessary when it appears that the vendor would have refused such tender, if made.

5. When bill for specific performance and lis pendens is filed by the vendee, the decree will bind the vendor and all persons thereafter acquiring from him an interest in the lands.

6. One may be bound by a decree in a suit in equity who has in fact defended the suit, though not a party on the record.

7. Upon delivery of a contract for sale of lands, the vendee becomes the equitable owner of the lands and the vendor trustee of the legal title for the vendee.

8. Where the vendor in a contract to convey subsequently contracts to sell the same lands to another purchaser, the second vendee is not a bona fide purchaser, unless he has paid his full purchase price without notice of the prior contract.

9. The second purchaser is entitled to protection only to the extent of his payments made without notice of the prior contract. The decree for specific performance of the first contract should provide for adjustment of the rights of the second purchaser as against the vendor.

10. Where the wife of the vendor has not joined in the contract to convey, and has not expressed refusal to join in a conveyance, specific performance by the vendor may be decreed. If the wife then refuses to release her dower, the vendor may be required to give an indemnity bond against her claim, or, in default thereof, an abatement of the purchase price to the extent of the value of the wife's dower may be decreed.

Suit by John H. Miller against William F. Headley and others.

Decree in accordance with opinion.

King & Vogt, of Morristown, for complainant.

William F. Headley and Elroy Headley, both of Newark, for defendants Headley and others.

Samuel C. Meyerson, of Dover, for defendants Hockenjos and others.

FIELDER, Vice Chancellor.

April 11, 1931, the defendant William F. Headley, a member of the bar of this state, signed an agreement in writing dated Newark, N. J., April 9, 1931, whereby (it is alleged) he agreed to convey lands at Lake Hopatcong to the complainant, John H. Miller. The agreement reads as follows:

"Whereas, under a certain decree dated March 3, 1931, in foreclosure John F. Gentzel vs. Roxbury Lumber Company, there is due J. F. Gentzel $5450.00 principal and interest $213.67 costs and Sheriff's fees which amount to about $5800.00 and.

"Whereas the party of the second part hereto has offered $4000.00 for an assignment of this mortgage, party of the first part, William F. Headley agrees to procure an assignment of said mortgage and decree for said sum of $4000.00 to be paid $500, check herewith and Balance Thirty five hundred dollars on or before May 15, 1931. Party of the first part further agrees at his own expense to continue said foreclosure proceedings and in event he can purchase said property for a sum not in excess of amount due on said first mortgage, to convey said property to John H. Miller party of the second part hereto provided balance of $3500.00 is paid on or before May 15th, 1931."

All dates hereinafter mentioned refer to the year 1931, and I shall designate the lands in question as tracts A and B. Said lands were under foreclosure, and were advertised for sale in the suit mentioned in said agreement, and Headley was Gentzel's solicitor of record therein. Headley proceeded with the sale, purchased the tracts for $500 in his own name, had the sale confirmed, and took title in his name by sheriff's deed dated April 13. Notwithstanding his agreement with Miller, Headley entered into a written agreement with William Hockenjos, Jr., dated April 23, to convey tract A to him for the consideration of $3,000, of which $1,000 was paid on the execution of the contract, and the balance of $2,000 was to be paid May 20, on which day Headley was to deliver his warranty deed conveying tract A to Hockenjos, free from incumbrance. May 14 Headley made an appointment to meet Hockenjos the following day in Dover, at the office of Mr. Meyerson, attorney for Hockenjos, to close title under the Hockenjos contract. On the night of May 14, Buck, Miller's representative, called on Headley at his home in or near Newark, presented Miller's certified check for $3,500 and a letter from Miller requesting Headley's deed pursuant to Headley's agreement for the sale of tracts A and B, and Headley made an appointment to meet Buck at his (Headley's) office the following morning, and the two met there. Buck requested Headley's deed to Miller, and again tendered Miller's certified check, which check Headley refused, saying he want ed cash. Headley had prepared a warranty deed to Miller, which he and his wife had executed and acknowledged, and he testified he believed he had prepared it after Buck's call the night of May 14, and he produced the deed at the trial. It is dated May 1, and bears the signature of Headley and his wife and a certificate of acknowledgment dated May 14, and describes tracts A and B as the land to be conveyed. He further testified that he had no intention of delivering the deed even had Buck tendered him cash therefor, but did not so state to Buck. When Headley told Buck he wanted cash, Buck said he would return to Headley's office that afternoon with the cash, and Buck left for Rockaway, where Miller lived, got the cash, and was back at Headley's office before 5 p. m. Headley was not there, and Buck made tender of the cash to the person in charge of the office, and, upon refusal of acceptance, went to Headley's home, and, after a fruitless wait of two hours for Headley, made tender to the latter's son. The next morning Buck went to Headley's office to make further tender, but Headley was not there. Miller thereupon placed the matter in the hands of his solicitor, who, on May 18, filed the bill of complaint in this cause for specific performance of Headley's contract to convey tracts A and B, and named as defendants therein Headley, his wife, and John P. Gentzel. He also issued subpœna to answer, filed a lis pendens, and had the subpoena served on Headley, all on May 18. A prolix and involved joint answer was filed for all defendants, from which I gather that the defense intended to be interposed to the bill is that Headley's agreement was not accepted by Miller, but was repudiated; that the defendants were willing and offered to assign the mortgage and decree mentioned in the agreement and to convey the property in question to Miller, but he refused to accept the same; that there was no consideration for the agreement; and that Miller made no tender of performance. The answer does not set up as defense that Headley was not authorized by Mrs. Headley, or by Gentzel, to enter into the agreement, or that Headley did not acquire title for himself at the sheriff's sale.

After Headley had refused Miller's certified check on the morning of May 15, and had refused to deliver his deed for tracts A and B, ostensibly because he wanted cash, Headley went to Mr. Meyerson's office the afternoon of that day, and there met Mr. Meyerson and Hockenjos. He was then tendered a certified check for the balance due under the Hockenjos contract, and his deed was requested, which deed Headley declined to deliver, unless Hockenjos would agree to reconvey to him within thirty days, to which condition Hockenjos refused assent, whereupon Headley said he would not close title that day, but would return May 20, the date fixed in the Hockenjos contract. Mr. Meyerson was suspicious that Headley intended to default on his contract, and he filed the Hockenjos contract for record in the county clerk's office May 10. On May 20 Headley met Hockenjos again at Mr. Meyerson's office, and delivered a warranty deed executed by his wife and himself to Hockenjos, for tract A, dated May 18, and received the $2,000 balance under the Hockenjos contract. This deed was recorded May 21. Two days before the delivery of this deed, Headley had been served with subpoena to answer in the Miller suit, but he concealed the pendency of that suit from Hockenjos and Meyerson. Meyerson had expected to close title for tract A May 15, and had made a title search to that date, at which time no cloud appeared on Headley's title, and, when closing title May 20, Meyerson did not continue his title search, and was without knowledge of the pendency of the Miller suit, but relied on the assurance of Headley, a brother lawyer, that the title was clear. He did not learn of the Miller suit until May 29, and on June 10 he filed a bill for Hockenjos against Headley and Miller, praying that his client's rights in tract A be adjudged paramount to the rights of Miller therein, or, in the event that Miller's rights be found superior to Hockenjos', and that Headley should be decreed to convey tracts A and B to Miller, Miller be directed to apply the consideration for conveyance of tracts A and B toward the return of the $3,000 consideration paid by Hockenjos to Headley and the expense of title examination and the damages suffered by Hockenjos for Headley's...