Simpson v. Klipstein

• Decision Date: 18 November 1918
• Docket Number: No. 26.,26.
• Citation: 89 N.J.Eq. 543,105 A. 218
• Parties: SIMPSON et al. v. KLIPSTEIN.
• Court: New Jersey Supreme Court

105 A. 218

89 N.J.Eq. 543

SIMPSON et al.

v. KLIPSTEIN.

No. 26.

Court of Errors and Appeals of New Jersey.

Nov. 18, 1918.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Bill by Leslie N. Simpson and others against Ernest C. Klipstein. From a decree of the Court of Chancery (88 N.J.Eq. 229 102 Atl. 242) in favor of complainants, defendant appeals. Reversed.

Frederick Seymour, of New York City, and Borden D. Whiting, of Newark, for appellant.

Martin Conboy, of New York City (Griggs & Harding, of Paterson, on the brief), for respondents.

TRENCHARD, J. The bill in this case is to compel the specific performance of a contract for the sale of real and personal property signed by "Midvale Chemical Works, by George W. Hunter and Leslie N. Simpson, Trustees" (vendor), and Ernest C. Klipstein (vendee). The contract was made May 29, 1917, and immediately thereafter the vendor delivered to the vendee possession of the property. The agreement provided for the delivery of the deed for the real estate on June 20th, and the time was extended to July 3d by mutual consent. On this latter date the trustees tendered a deed which was refused by the defendant, who thereupon tendered possession of the property to the trustees which tender was refused. On July 6th a fire occurred on the premises which destroyed a part of the buildings. The trustees then filed this bill, which resulted in a decree for specific performance, and from it the defendant appealed.

We are of the opinion that the decree was not justified under the evidence.

The defendant declined to accept the deed tendered for the reason, among others, that the complainants' title was incumbered by various easements, and he now contends that the decree for specific performance was not justified for that reason.

We think that such contention must prevail, and have therefore found it unnecessary to examine and decide any other question.

The contract provided, among other things, for the sale and conveyance by the party of the first part to the defendant of "all of its real property, consisting of two parcels of land situate at the intersection of the Long Branch division of the Central Railroad of New Jersey at Bayway avenue in the section known as Bayway, Elizabeth, New Jersey, one 14.22 acres and the other 2.92 acres, total 17.14 acres, being the property on which the chemical plant of the party of the first part is located, * * * by a good and marketable title free and clear of all incumbrances," excepting certain specified mortgages.

Putting out of view the mortgages specified (with which we are not concerned), under such a contract the vendor was bound to have and tender a title free from incumbrances, and dependent for its validity upon no doubtful questions of law or fact. The title must be such as to make it reasonably certain that it will not be called into question in the future so as to subject the purchaser to the hazard of litigation with reference thereto. Vreeland v. Blauvelt, 23 N.J.Eq. 483; Methodist Episcopal Church v. Roberson, 68 N.J.Eq. 431, 58 Atl. 1056; Van Riper v. Wickersham, 77 N.J.Eq. 232, 76 Atl. 1020, 30 L. R. A. (N. S.) 25, Ann. Cas. 1912A, 319.

Such a title the vendor did not tender and did not have.

The deed tendered to the defendant contained this provision:

"This conveyance is made subject to the public and private rights in streets and avenues crossing or bounding the hereinabove described premises."

The property in question, while for convenience described in the contract and deed as two lots, was in fact one single piece of property designed for manufacturing purposes; the two lots adjoining one another.

Now it appears that in 1859 a former owner of the tract, of which the lands in question were a part, made a map thereof (known as the "Bayway map") and filed it in the county clerk's office, and later conveyed a lot by reference to such map, describing it as bounding on Brighton street shown on the map. That constituted a dedication to public use of Brighton street as laid out thereon. McAndrews & Forbes Co. v. Camden, 78 N.J.Eq. 244, 78 Atl. 232; Camden v. McAndrews & Forbes Co., 85 N.J.Law 260, 88 Atl. 1034; Clark v. Elizabeth, 40 N.J.Law 172; Pope v. Town of Union, 18 N.J.Eq. 282.

True it appears that the street had not been opened nor formally accepted by the municipal authorities, but nevertheless its dedication by sale with reference to the filed map constitutes a cloud upon the title entitling the vendee to refuse to take title in the absence of a vacation of such street (McAndrews & Forbes Co. v. Camden Nat. Bank, 87 N.J.Law 231, 94 Atl. 627, Ann. Cas. 1917C, 146; Vogt v. Mullin, 82 N.J.Eq. 452, 89 Atl. 533; Agens v. Koch, 74 N.J.Eq. 528, 70 Atl. 348), because after such a dedication of a street to public use there exists the right of the public to appropriate the street at any time when their wants or convenience require it (Trustees of M. E. Church v. Hoboken, 33 N.J.Law 13, 97 Am. Dec. 696; Hoboken Land, etc., Co. v. Hoboken, 36 N.J.Law 540; South Amboy v. N. Y. & L. B. R. R. Co., 66 N.J.Law 623, 50 Atl. 368; McAndrews & Forbes Co. v. Camden, 78 N.J.Eq. 244, 78 Atl. 232).

But the complainants contend that Brighton street was vacated in 1915. We do not so read the record. It appears that in 1869...