Rutherford Land & Improvement Co. v. Sanntrock

• Decision Date: 11 December 1899
• Parties: RUTHERFORD LAND & IMPROVEMENT CO. v. SANNTROCK.
• Court: New Jersey Court of Chancery

44 A. 938

RUTHERFORD LAND & IMPROVEMENT CO.

v. SANNTROCK.

Court of Chancery of New Jersey.

Dec. 11, 1899.

Bill by the Rutherford Land & Improvement Company against Frederick Sanntrock

for specific performance of a contract to convey land. On final hearing. Judgment for complainant.

Albert I. Drayton and Joseph F. Randolph, for complainant.

John I. Weller, for defendant.

PITNEY, V. C. (orally). I think I will dispose of this case at once. It is an important case. It is an important question to both parties, and its decision may affect other titles; but, if I am in error about it, the parties have their remedy by going to the court of errors and appeals. Now, I think it may be said to be perfectly well settled that so far as concerns a question of general law, or the construction of a document, which is a question of law, this court will decide the one, and construe the other, on a bill for specific performance, for the reason that whatever it settles as a matter of law it settles against all the world, whether all the parties having an interest in the question are here or not; and, if this court cannot settle it the court of appeals can.

Now, let us see what this case is. It is a bill for the specific performance of a contract for the sale of land by the Rutherford Land & Improvement Company, vendor, against Frederick Sanntrock, vendee. The making of the contract itself, and its binding effect as between the parties, is admitted. The sole defense set up is that the title of the Rutherford Land & Improvement Company in the property in question is of such a doubtful character as to make it unmarketable. It is quite difficult to define a marketable title. I had occasion during the course of the argument to call attention to the fact that, in the sense of being beyond the reach of serious attack, such a thing as a perfect title is quite rare; that one that is apparently on its face the very best might be attacked, and successfully attacked,—as, for instance, the case of an insane grantor, or of a forged deed, with a forged acknowledgment. A party might be in possession for years under a deed, and yet afterwards an infant might come forward and attack that deed on the ground of insanity of the grantor, or forgery, and prove the insanity or forgery. There are other supposable cases, which I will not take up the time of counsel to state,"but they suggest themselves to the mind of every lawyer who has anything to do with handling titles to land. There are, however, two classes of titles which I will mention, one of which depends entirely upon matters of record, or documents which, so to speak, prove themselves; and the other upon matters in pais. There is title by descent. which is almost always a matter in pais. The laws of our state do not provide, upon the demise of a party and the descent of his land to his heirs at law, for any judicial action determining who those heirs at law are, and declaring that the title vests in them. In California I happen to know that such judicial action takes place in every case. There the heirs at law prove their case, so to speak, before a court corresponding to our orphans' court, and get a new title,—a declaration by that court, which is binding on all the world, that they are the heirs at law of the decedent, and that the title vests in them. Such a thing does not occur here. So that title by descent is almost always, in this country, a matter in pais. Then, in contrast with this class, there are titles of record, supported by documentary evidence which is generally recorded, perfectly good on their face, and unexceptionable, that are nevertheless liable to be disturbed by matters in pais,—by proof of matters in pais. All of us hold our titles subject to that kind of attack. All titles are held subject to attack by matters in pais that we may know nothing about. Then there is a class of titles which can only be sustained at any time when attacked within, say, 10 or 20 or 30 years, by proving a matter in pais, like a matter of descent. I hare already referred to that; but I have just now in mind more particularly other matters which are not within the knowledge of many persons, such as the proof of the execution of a writing—of a deed or a will—which is a part of a title. Thus, a title may be held under a deed that never has been acknowledged, which is perfectly good, just as good as if it had been acknowledged, if executed in the presence of a witness—if the grantor is not a married woman; just as good, as far as intrinsic merits go, as one that has been acknowledged and recorded; and the possession of the unrecorded deed itself, if it be witnessed by some gentleman whose signature is well known (if it can be preserved), is probably a better title than a certified copy of the record of a deed with the original gone. Now, for present purposes, I will define, without attempting to do so as I would if I were writing an opinion,—I will define a title that is not marketable as, in the first place, one where the written title contains on its face some notice of something outside which may lead to some fact that may disturb the title; where the deeds, wills, or decrees, give on their face some indication of some existing outstanding fact which will affect the title. Then another one is where the title depends necessarily upon matter in pais, which is in itself a doubtful fact, and never can be determined or established except by bringing every party interested into court,—certainly others besides the immediate party to the suit for specific performance. An instance of this is a will without a proper attestation clause, —properly executed in fact, but not so appearing on its face, and never offered for probate.

Now, let us see whether there is anything in this case which comes within either of the two categories that I have attempted roughly to state. Is there anything on the face of the written record title which the complainant produces in this case to indicate that there are facts and circumstances which, if sifted, may disturb the title? Or is there any proof brought before the court to show a reasonable probability that a person not bound by these proceedings may prove something hereafter which will disturb this title? Now, at one time the title was vested in Arnold Mohn, who died in 1887, testate of a will. Now, that will is proven to be the will of Arnold Mohn; but it may hereafter be proven, perhaps, if the seven-years statute does not apply to it, that it was a forgery. But it is admitted by the defendant, for present purposes, that he left a will. By that will, by the fourth clause, he gave the rest and residue of his property, both real and personal, to his children, to be divided share and share alike. Then, by the fifth section, he said: "I appoint and nominate my friend John Zulauf executor of this, my last will and testament, and my said beloved wife, Rosette, executrix, to act in conjunction with my said executor." That was an appointment of those persons as executors. There is some peculiar language which I will refer to hereafter. "Sixth. My real estate, wherever found, I give to my executor and executrix in trust for my estate; giving them full power and authority to dispose of the same at any time, if deemed by them for the benefit of my estate." Now, there are questions raised as to the construction of that will; and I hold here, now, that, as I understand the latest authorities, it is competent for the court to decide these questions here in this cause, and when it has decided them, and the court of errors and appeals has affirmed, it will bind everybody, just as any other question of decided law will bind. The construction of a deed or a will is a question of law; and, when decided by the court, no matter whether the parties interested in it are all before the court, it decides it once for all.

Now I hold that, notwithstanding the devise in the fourth clause to his children, the devise in the sixth clause of the real estate to his executor and executrix vested the title in the executor and executrix as trustees; that the doctrine of a fee simple to A., and then a devise over in fee simple to B., does not apply. Not only does the last devise here vest the title in the executors, but it is the intention of the testator that they should be the first to take. It is, so to speak, first in order of time in vesting, although last in the will. Therefore I hold that the title vested in these two executors.

The next question is as to the effect of the death of John Zulauf,—I mean, on the face of this will. Under the statute and at the common law, when John Zulauf died, as the devise was in trust, the devise survived to the other executor, Mrs. Mohn. Therefore she was seised as trustee of the title to that property.

Then we come to the power of sale. The power of sale, or the permission to sell, is given to both, and it is given to them as executors. They are not mentioned as individuals in that sixth section. They are mentioned there as executor and executrix. And I hold that it makes no difference that this sixth clause succeeds the clause in which they are named as executors. The will is to be construed precisely as if the power to the executors, as such, to sell, had been given in the will prior to the naming of the executors. Therefore, in my judgment, under the statute, besides the effect of the survivorship at the common law, the wife had the power to sell, —the power of disposition, whatever it is. I will come to that in a moment. And the only question that remains is whether the case comes within the exception in the statute giving the right to a surviving executor to convey, which exception is, "unless it shall be otherwise expressed in said will." Revision, p. 397, § 10. Power is given to the surviving executor "unless it is otherwise expressed in said will." Now, it is argued by counsel for defendant, with great force (as, indeed, the entire...