Schoenberg v. O'Connor

• Decision Date: 20 September 1935
• Citation: 185 A. 377
• Parties: SCHOENBERG v. O'CONNOR.
• Court: New Jersey Supreme Court

185 A. 377

SCHOENBERG

v. O'CONNOR.

Supreme Court of New Jersey. Hudson County.

Sept. 20, 1935.

Action by Morris Schoenberg against Cecilia T. O'Connor.

Judgment for plaintiff.

Judgment affirmed by Court of Errors and Appeals, 185 A. 382.

Edward Schwartz, of Jersey City, for plaintiff.

Roberson & Roberson, of Bayonne, for defendant.

ACKERSON, Judge.

This matter is submitted to the court for decision without a jury upon an agreed state of facts. The action is brought to recover the sum of $1,000, deposit paid, and the sum of $100 search fees incurred by the plaintiff under a contract for the purchase of certain real estate from the defendant. The theory of the action is a rescission of the contract upon the ground that the defendant's title is unmarketable because it is claimed that a strip of land 8 feet in width extending along the southerly boundary of the premises in question has been dedicated to the public as a part of a public road in the process of widening and extending a previously existing private lane known as "Osborn Lane."

It appears from the stipulated facts, and abstracts of title made a part thereof, that the aforesaid Osborn Lane was originally created in the deed of conveyance from Henry Osborn and wife to Abraham Garrabrants, dated June 3, 1847, and duly recorded on June 7, 1847, whereby said Osborn conveyed a portion of his lands lying to the eastward of the road now known as Broadway in the city of Bayonne to the said Garrabrants. The only provision in the deed creating said "Osborn Lane" is as follows: "Excepting thereunto on the northerly side of the lot hereby conveyed a lane of twenty links wide for and as a right of way for the use of both parties herein mentioned." This same exception is contained in each of the deeds thereafter appearing in the chain of title except the last from Annie Kovacay and husband to Harris Boorstein, the present owner, dated September 15, 1919.

This lane as originally provided for and laid out did not in any way affect the premises here in question, but adjoined the same on the south. The alleged dedicatory act by which it is claimed the strip 8 feet wide along the southerly boundary of the premises in question is alleged to have been dedicated or offered to be dedicated as a part of a public road arises out of a written agreement entered into between Thomas McDonald, formerly the owner of the property, of which the lands in question are a part, and the aforesaid Henry Osborn, then the owner of adjoining premises to the east of the tract conveyed by him to the aforesaid Garrabrants. This agreement is dated June 26, 1854, and recorded December 6, 1866, and purports to widen and extend "Osborn Lane" as originally laid out between the properties of the aforesaid parties and to dedicate the same as a public road by adding 8 feet to the width thereof from the property of said McDonald, lying along the northerly side of said original lane, to the easterly termination of said original lane, and by continuing said lane from that point on for a width of 24 feet to a new terminus at the westerly line of the lands of Jacob Cubberly, an adjoining owner on the east, 12 feet of the width of said extension to be from and along the property of said McDonald and the remaining 12 feet from and along the remaining property of said Osborn.

The aforesaid agreement provides as follows:

"The said Osborn and McDonald mutually agree to give and grant from their respective lands sufficient to widen and lengthen the road or lane that leads from the Plank Road in the Village of Centerville to the House and premises of said Osborn, passing between the houses, of Ebenezer Ferris and Thomas Cubberly, as follows:

"The said Osborn agrees to continue the above mentioned road or lane that is now open and in use to his house, which is twelve feet wide Southeasterly to the West line of land belonging to Jacob Cubberly, the continuation of said Road or Lane to be also twelve feet wide, the said Road to be for the accommodation of said Osborn and said McDonald, and also for the accommodation of the public. The said Road or Lane from the Plank Road to said Osborn's house, which is twelve feet wide is subject to the restriction contained in a deed given by the said Osborn to Abraham Garrabrants in the year Eighteen hundred and forty seven. The said McDonald also agrees to add eight feet to the width of said Road or Lane, on the north side of said road or lane that leads from the Plank Road to the house of said Osborn, until said Road or Lane reaches the southeast corner of the present dwelling house of Thomas Cubberly, from thence the said McDonald Agrees to give and grant twelve feet to the above described Road or Lane, and to continue that width to the west line of land of Jacob Cubberly, which said Road or Lane is to be a Public Road. The said Road will then be Twenty feet wide from the Plank Road to the southeast corner of the house of Thomas Cubberly, and from thence twenty four feet wide until it reaches the above mentioned west line of land belonging to Jacob Cubberly, and is given and granted by said Osborn and McDonald as a public Road, for the true performance hereof we bind ourselves, our heirs and assigns, in the penal sum of Twenty Dollars." (Italics mine.)

The contract by which the defendant agrees to convey the premises in question to the plaintiff provides that the conveyance shall be "by deed of full covenant and warranty free of all incumbrances," and that "if the title to said premises is determined to be unmarketable and the second party" (plaintiff herein) "elects to rescind this contract on account of the unmarketability of the title, the first party shall be obligated only to return the deposit of $1,000, and pay the sum of not exceeding $100, for expenses of examining the title to said premises, in full satisfaction of all claims and demands of said second party."

It will be seen, therefore, that the fundamental question to be determined, by virtue of the aforesaid provisions of the contract here involved, is the marketability of the title to the premises in question as affected by the aforesaid agreement between Osborn and McDonald dated June 26, 1854.

The defendant contends that this agreement does not make the title unmarketable for four reasons.

In the first place, the defendant contends that the agreement between Osborn and McDonald was without consideration, lacked mutuality, and was, therefore, unenforceable, and did not constitute a dedication of any part of McDonald's property as a public road. The only reason urged in support of this contention is, that while McDonald was in a position to dedicate to public uses all of the strip of land to be provided by him, as he still owned all of it in fee, nevertheless it is claimed that Osborn was not, because under his deed to Garrabrants in 1853, which was prior to his agreement with McDonald, he had created "Osborn Lane" as a private road "for the use of both parties" therein mentioned. It is insisted, therefore, that Garrabrants had an interest in that part of said original lane lying immediately in front of his premises, and that this interest could not be affected by the later dedication of the widened and extended lane as a public road, except by his joining in the agreement. The defendant insists that the dedication of a road is tantamount to a conveyance to...