Nibert v. Baghurst

• Decision Date: 07 August 1890
• Citation: 20 A. 252,47 N.J.E. 201
• Parties: NIBERT v. BAGHURST et al.
• Court: New Jersey Court of Chancery

20 A. 252

47 N.J.E. 201

NIBERT

v. BAGHURST et al.

Court of Chancery of New Jersey.

Aug. 7, 1890.

(Syllabus by the Court.)

Rule to show cause why injunction should not issue.

John W. Westcott, for complainant. E. A. Armstrong, for defendants.

GREEN, V. C. The bill of complainant in this action is filed by Francis Nibert against George Baghurst and wife and Francis Phillips for the specific performance of a contract for the sale of lands, and the conveyance of the same according to the alleged terms thereof. The answer denies the contract as set up in the bill. The complainant being in possession of the premises, an action of ejectment was brought against him in the supreme court by Baghurst and wife, in which judgment was rendered in their favor. Execution issued on this judgment, being in the hands of the sheriff of Camden county for the dispossession of the complainant, he has filed a petition in this suit to restrain the defendants from enforcing their judgment and writ.

The claim of the petitioner is that, on or about August 2, 1886, he purchased of George Baghurst certain lands in the county of Camden for the sum of $830, and that Baghurst also, and as part of said contract, agreed to build a bridge and road for complainant's use across Timber creek, a stream which runs through the land, with the right to raise a dam for water-power on said creek for the purpose of a factory; that part of the consideration money was paid, and that in pursuance of the agreement Baghurst and wife put him in possession of the property, and that he immediately erected a dwelling-house thereon, which he and his wife have since occupied; that, after these acts in performance of the agreement, and after his making other payments, Baghurst refused to carry out his contract, but conveyed the property to the defendant Phillips in fraud of complainant's rights. The action of ejectment was commenced in August, 1887. He says that his interest was neglected by his attorney, and that judgment was taken against him by default; that other counsel, on January 13, 1888, obtained a rule to show cause why the judgment should not be opened; that this rule was abandoned, and he then employed his present counsel; and that the sheriff of Camden county threatens to put him out of possession by virtue of the writ in his hands. A rule to show cause why an in junction should not issue, with a restraining order, having been allowed, the defendants have filed their answer to the petition with the affidavits of the defendants and other witnesses. The petitioner's equity rests on the allegations that he is in possession of the premises under a valid contract of sale, by act and permission of the vendors; that he has paid part of the consideration money, and that while in such possession he has erected a dwelling-house upon the premises. This shows an equitable interest, of which he could not have availed himself as a defense in the action of ejectment, (Commissioners v. Johnson,36 N. J. Eq. 211,) and would entitle him to the protection of a court of equity if satisfactorily established, (Story, Eq. Jur. § 887.)

The testimony produced on this motion shows that the property in question belonged, in August, 1886, to George Baghurst and wife; that "it was wild land, in the bush, except a small part of a meadow;" that George Baghurst was the agent of his wife, and managed and carried on all her business matters and affairs; that on or about August 2, 1886, George Baghurst and Francis Nibert came to a verbal agreement for the sale and purchase of the property in question for the consideration of $830, $200 to be paid in cash, and the balance in four equal yearly installments, with interest. Whether there was an understanding on the part of Baghurst to build a bridge and road for Nibert's use is in dispute between the parties. The agreement was to be reduced to writing by a Mr. Turner, a real-estate agent, and signed by the parties. Twenty-five dollars was paid on the day of the agreement by Nibert, and several small payments were also made during the summer, which, with some painting, amounted to $155. Baghurst, under date of October 13, 1886, wrote to Nibert suggesting the execution of an agreement in writing. In February, 1887, Baghurst prepared an agreement in writing, which was left with Turner, but which Nibert refused to sign, because, as alleged, nothing was said in it about a bridge or dam. After this, and on March 24, 1887, Nibert asked Baghurst whether, if he did not go on with the matter, he could have his money back; to which Baghurst replied: "Certainly. The money is yours, not mine. You can have it back at any time, at call." On the 19th of May, 1887, the parties met, by appointment, at the office of Shivers & Moffit. Here Nibert claimed "there was not as much land, nor as great value in the land, as he thought when he made the proposition, and therefore he was not willing to purchase for the sum named," but he offered Baghurst to make an immediate purchase and settlement for the sum of $650. Baghurst, denying any liability on his part, consented that if Nibert would immediately purchase and settle for the land he would take that sum. Nibert had a deed prepared with consideration of $655, which Baghurst, on June 3, 1887, discovered embraced a lot he had sold to one Rogers, as well as the land he had agreed to sell to Nibert, and he declined to execute it on that account, saying to Nibert he could not convey that tract, as it had been sold before he ever saw him; to which Nibert replied, "Then I will not accept it;" and Baghurst then told Nibert, "I will give you your money back." Soon after this Nibert took possession of the property, and commenced building his house, whereupon the suit in ejectment was brought, with the result stated. After the recovery in this suit the property was sold and conveyed by the Baghursts to the defendant Phillips.

The defendants resist the application for an injunction on the grounds that the alleged agreement was by parol, and is not enforceable under the statute of frauds, and that it was made on Sunday, and is void under the laws of this state. The petitioner seeks to avoid the objection based on the provisions of the statute of frauds, first, on the ground that there had been such a part performance of the contract as to take the case out of the statute, under the rules which obtain in the courts of equity, and that there was a sufficient memorandum under the statute of this state.

As part performance he introduces several documents, such as maps, surveys, drafts of agreements, and similar evidence, and sets up part payment of consideration, possession, and the erection of a dwelling-house. Acts ancillary to an agreement, although attended with expense, are not considered acts of part performance. Thus the delivery of abstracts of title, giving orders for conveyances, going to view an estate, putting deed in solicitors' hands to prepare a conveyance, surveying, and similar acts, do not have the effect of taking the case out of the interdiction of the statute 1 White & T. Lead. Cas. Eq.*772; Brett. Lead. Cas. Eq. 101.

Part payment will not of itself ordinarily take the case out of the operation of the statute. Clinan v. Cooke, 1 Schoales & L. 22, 40; Campbell v. Campbell, 11 N. J. Eq. 270; Cole v. Potts, 10 N. J. Eq. 67; Story, Eq. Jur....