Saracino v. Kosower Const. Co.

• Decision Date: 06 February 1928
• Docket Number: No. 122.,122.
• Citation: 140 A. 458
• Parties: SARACINO et al. v. KOSOWER CONST. CO.
• Court: New Jersey Supreme Court

140 A. 458

SARACINO et al.

v. KOSOWER CONST. CO.

No. 122.

Court of Errors and Appeals of New Jersey.

Feb. 6, 1928.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Suit by John Saracino and another against the Kosower Construction Company for specific performance. From a decree of dismissal, complainants appeal. Affirmed.

Welanko & Strauss, of Newark (Abraham Welanko, of Newark, on the brief), for appellants.

Meaney & Lifland, of Jersey City (Thomas F. Meaney, of Jersey City, of counsel), for respondent.

TRENCHARD, J. The bill in this suit was filed to compel the specific performance of a contract, made November 9, 1926, for the sale, by deed of warranty, of a piece of land located in Morris county; the complainants, Saracino and wife, being the intending vendors, and the Kosower Construction Company, the vendee. The defendant, when the time for performing the contract came, refused to accept the conveyance tendered upon the ground that the title was defective.

The proofs at the trial showed that i n 1874 one Jacob Peer was a tenant in common of the property; that in that year he left his wife and infant daughter and home, and in 1884 his wife obtained an absolute divorce on the ground of desertion. His former wife and his sister testified that his relatives had never thereafter seen or heard of him, with the exception of his cousin, Thomas Peer, who testified that in 1889 he was told by one Crockett, a friend of Thomas, that he (Crockett) had met Jacob previously in the "gold fields" where Jacob and another man were working a "gold claim," and that this other man told Crockett a couple of weeks later that Jacob was dead. No other members of the family testified. It further appeared that Jacob's daughter, Laura, in April, 1910, joined in a conveyance of the property in question to a predecessor in title of the complainants, in which deed she is described as the only heir at law of Jacob Peer. In this posture of the evidence the Vice Chancellor advised a decree dismissing the bill upon the ground that the defendant was not obligated to take the conveyance, because of the lack of proof that Jacob Peer was actually dead.

Now it is quite clear that the testimony of Thomas Peer, that he was told by another person that some other person had told him that Jacob Peer was dead, is not sufficient proof of the death, where, as here, the person making such statement was not a member of the family of Jacob Peer, and it is not shown what means he had of knowing the alleged fact. 17 C. J. p. 1176, and cases there cited.

The complainants, however, relied below and rely here on our statute (the Death Act) as creating a legal presumption of death at the expiration of 7 years after he had been last heard of.

In the case of Meyer v. Madreperla, 68 N. J. Law, 264, 53 A. 477, 96 Am. St. Rep. 536, this court held, in reviewing a judgment of the Supreme Court, that proof of the absence of a person, whose existence is in question, from the state or from his last-known residence, for a period of 7 successive years defeats the presumption of continuance in life, and raises a counter presumption of death, and that this counter presumption of death is not one of fact, but one of law, which, in the absence of proof rebutting such presumption, stands as proof of death. In the cited case the plaintiff sued to recover the down money paid on a contract for the sale of land, the claim being that the defendant could not make a good title because he had acquired the same from the children of one McDermott, who died testate, and that one of the sons of the testator did not join in the execution of the deed. The defense was that this son had disappeared and was unheard of for more than 7 years. The court held that the...