Ross v. Ponemon

• Decision Date: 10 March 1970
• Citation: 263 A.2d 195,109 N.J.Super. 363
• Parties: Blanche Noble ROSS and Irvin W. Ross, her husband, Plaintiffs, v. Benjamin PONEMON, Ruth D. Ponemon, his wife; Roger F. King, Patricia F. King, Robert L. Hitchner, Joanne Hitchner, their heirs, executors, administrators and/or assigns, Defendants.
• Court: New Jersey Superior Court

Page 363

109 N.J.Super. 363

263 A.2d 195

Blanche Noble ROSS and Irvin W. Ross, her husband, Plaintiffs, v. Benjamin PONEMON, Ruth D. Ponemon, his wife; Roger F. King Patricia F. King, Robert L. Hitchner, Joanne Hitchner, their heirs, executors administrators and/or assigns Defendants.

Superior Court of New Jersey Chancery Division.

March 10, 1970.

J. Peter Davidow, Millville, for plaintiffs.

Charles Lee Harp, Jr., Camden, for Benjamin Ponemon and Ruth D. Ponemon, (Archer, Greiner, Hunter & Read, Camden, attorneys).

Keron D. Chance, Bridgeton, for Roger F. King and Patricia F. King.

David L. Horuvitz, Bridgeton, for Robert L. Hitchner and Joanne Hitchner.

HORN, J.S.C.

This quiet title action was brought primarily for the purpose of obtaining a judicial declaration that a certain tract of land, consisting of .61 acres on which is a small house occupied by plaintiffs, is not subject to a preemptive right of acquisition on the part of defendants Hitchner. Subordinate issues raised by means of counterclaim and crossclaims involve reformation of the preemptive agreement as well as damages and indemnification.

In 1943 plaintiff Blanche Noble Ross was known as Blanche Noble, wife of Ralph Noble. She acquired title by deed to a tract of approximately 29 acres, known as the Swing Tract. This land did not include the .61 acres contiguous to the 29 acres. It did include thereon a larger house which Mrs. Noble and her husband occupied and which was approximately 150 to perhaps 250 feet away from the smaller house.

Mr. Noble was ill. As a result of negotiations, an agreement of sale was entered into between Mrs. Noble, seller, and Benjamin Ponemon, one of the defendants, as buyer. The consideration was $25,250. No formal descriptions were included in the agreement, but it stated that the tract to be acquired thereunder by Ponemon was the 'Noble property (formerly Swing property).' It specifically excepted 'the small house with approximately 1 1/2 acres; said exception having as its southerly boundary a line running from a linden tree at the edge of Main Street, Fairton, 335 feet westerly to a point at the Fairton Gut.' A land surveyor had been engaged to prepare the description for the 18 1/2-acre tract to be acquired by Ponemon.

Paragraph 10 of this agreement provided:

It is agreed by both parties that no building shall be erected on the excepted parcel within 60 of the aforementioned southerly boundary.

It is further agreed that the above mentioned buyer shall have first refusal in writing, if and when the portion retained by the seller is put up for sale by her/her heirs, executors, administrators or assigns. Said first refusal price shall be $10,000. * * *

For a clearer understanding, reference is made to Exhibit P--27. The land sold to Ponemon is designated. It included parcel A (two acres) on which the larger house is situate. Title to Parcel B (1 1/2 acres) remained in Mrs. Ross. Title to Parcel C (.61 acres) was obtained by her through the action to quiet title referred to later in this memorandum.

Closing under the agreement with Ponemon took place on June 15, 1957, at which time the sellers, as well as the buyers, were represented by counsel. Although the deed for the 18 1/2-acre tract was executed and delivered, apparently it was agreed that Ponemons' counsel, Francis Stanger, would draw the instrument to effectuate the provisions of the agreement of sale granting the preemptive right. Mr. Stanger prepared the description with difficulty from some survey that was provided to him. After it had been prepared it was forwarded to his client Ponemon for review, and probably to Mrs. Noble's then counsel Harry Adler, likewise for review. No subsquent agreement or discussion was shown to have taken place among the parties to change the terms of the agreement of sale.

However, the description as contained in the subsequently recorded instrument drawn by Mr. Stanger, and which was backdated to June 16, 1957, did not include the .61 acreage with the small house on it.

Thereafter Ponemons and defendants King entered into an agreement, dated September 15, 1958, for the sale of the same land which the Ponemons had acquired. Though the agreement between them made no reference to the preemptive agreement, after the execution of this agreement and prior to the settlement which took place on October 31, 1958, Ponemons' right, title and interest in said preemptive agreement was assigned to the Kings.

In 1965 the Kings conveyed Parcel A to defendants Hitchner, and a similar agreement of the preemptive rights was likewise delivered.

In or about July 1958 Mrs. Noble brought an action to quiet the title to the .61 acres. A final judgment in her behalf was entered on October 30, 1959. It was duly recorded. None of defendants in the instant action were parties to this action.

After the sale to the Ponemons, Mrs. Ross and her then husband Ralph Noble moved into the smaller house and made certain improvements and repairs. She and her present husband now occupy that house.

In October 1957 Mrs. Noble's attorney advised a title examiner that the Nobles 'would have to get their title matter straightened out forthwith for the dwelling in which they reside in the village of Fairton.'

In June 1965 the Hitchners sent a letter by certified mail to Mrs. Ross, notifying her that they had acquired the King homestead and also the option which was first given to Ponemon 'and now assigned by Kings to us, wherein the home that you reside in must first be submitted to us for purchase, if and whenever you desire to sell same at a price affixed therein.' Plaintiffs instituted this action on January 30, 1969.

Plaintiffs seek a judicial declaration that it was never intended by the agreement of March 14, 1957 between Mrs. Ross and Mr. Ponemon that the right given to Ponemon should survive his conveyance of the land. They further contend that such right as was given never included, nor was intended to include, the .61--acre tract with the small house on it, and that this intention is confirmed by the description contained in the instrument drawn by Mr. Stanger.

The two instruments must be read together, and all of the circumstances surrounding the transactions must be considered, in order to determine the intention of the parties. The agreement of March 14, 1957 provides in the printed portion, near the end of it, that it should be binding upon the respective parties as well as their heirs, executors, and administrators. It had been drawn by a layman. The instrument drawn by Mr. Stanger made it very clear that it should be binding upon the heirs, executors, administrators and assigns.

I find that it was in fact the intention of the parties that it was to be binding upon the sellers, Mr. and Mrs. Noble, and also their heirs, executors and administrators even after the disposition of the land by Ponemons.

Mrs. Ross contends that she knew shortly after she acquired the entire tract from her grantor that the .61 acreage was not actually included in that conveyance, and that she did not own it. She argues that having been aware of that fact she could never have intended to include it in the preemptive agreement. The clear wording of the March 14 agreement of sale demonstrates otherwise. The explanation that I find for the description contained in the effectuating agreement prepared by Mr. Stanger is that all concerned at that time assumed that the small house was located on the Swing tract.

Plaintiffs further assert that it could never have been her intention to sell the small tract, together with the house on it, for only $10,000, considering that she expended large sums for improvements and repairs on...