Milmoe v. Murphy

• Citation: 56 A. 292,65 N.J.E. 767
• Parties: MILMOE v. MURPHY et al.
• Decision Date: 20 July 1903
• Court: New Jersey Supreme Court

56 A. 292

65 N.J.E. 767

MILMOE

v. MURPHY et al.

Court of Errors and Appeals of New Jersey.

July 20, 1903.

Appeal from Court of Chancery.

Bill for specific performance by Alexander Milmoe against William Murphy and Thomas J. O'Leary. Bill dismissed, and complainant appeals. Affirmed.

The following is the opinion of Vice Chancellor:

"This is a suit for specific performance of an agreement to convey land. The contract, signed only by the vendor, William Murphy, is dated on October 20, 1900. Murphy therein agreed to convey the lot in controversy by deed of warranty, free from all incumbrance, for the consideration of $450, on or before November 1, 1900. The evidence shows that the title to the lot was, prior to the year 1850, in Owen Murphy, the father of the defendant William Murphy, that Owen conveyed to his brother-in-law Bernard Ward; and that Robert Ward, the son of Bernard, reconveyed it to Owen Murphy. The answer and an affidavit put in evidence state that Bernard Ward, while he held title, died seised of the property in question, leaving several children as his heirs at law; that of these children all died when young but two; that Robert, the above grantor, was one of these two, and that the other had not been seen or heard from in thirteen years, and was believed to be dead. The defendant gave the complainant's counsel, Mr. Butler, the affidavit and papers disclosing these facts a few days after the agreement was signed, and thereupon Mr. Butler advised the complainant that he could not safely take title He called upon the defendant Murphy to take steps to have it declared that the missing brother's title had, because of the presumption of death, which, under our statute, arises from seven years' absence (Gen. St. p. 1187, § 9; Meyer v. Madreperla [N. J. Err. & App.] 53 Atl. 477), vested in his brother, Robert, whose deed, if the absence were proved, conveyed the entire fee, and not merely an undivided half. There were some negotiations between the parties, which failed, because, it would seem, of the unwillingness of the defendant Murphy to pay in cash to Mr. Butler $50 as a fee for perfecting the title. The agreement was to have been performed on November 1, 1900. On November 9th Mr. Butler wrote defendant Murphy as follows: 'Dear Sir: I just saw Mr. Milmoe and he says he will not take the title until it is perfected. He says you will have to refund him his forfeit money [referring to $25, paid on the signing of the agreement] and his search and survey expenses; making a total of $58.' On November 28th, Mr. Kenny, Mr. Murphy's solicitor, wrote Mr. Butler as follows: 'Mr. Murphy informs me that although your client Mr. Milmoe has refused to complete the purchase of the lot on South Sixth street, he has taken possession of it and occupies it Why is this thus?' On December 1, 1900, Mr. Butler responded: 'Dear Sir: Yours of Nov. 28th with reference to Mr. Milmoe's occupation of Mr. Murphy's lot just received. I do not understand such a state of circumstances to exist. However, I have sent your letter to Mr. Milmoe and advised him to desist if such is the case. I am contemplating the bringing of an action against Mr. Murphy for damages sustained by Mr. Milmoe owing to his [Murphy's] failure to give Milmoe title. 1 would suggest that you advise him to send me $100.00 and I will procure a proper release for him.' After this nothing was said or done by either party until May 13, 1901, when Murphy sold the property to the defendant O'Leary, whom the evidence shows to have been a bona fide holder for value without personal notice. The agreement had, however, been recorded on November 10, 1900, the day after the first of the above letters was written.

"On this state of facts I think it plain that the complainant cannot maintain his bill. In the first place, he asks that the deed from Murphy to O'Leary may be decreed to be void. Of course, the court could make no such decree. All it could do would be to direct a conveyance from O'Leary to complainant on the theory that O'Leary had constructive notice. In the second place, the bill prays, not for specific performance cypres; not for a conveyance of such title as defendant is able to give, but for absolute...