Sulk v. Tumulty

• Decision Date: 03 March 1910
• Citation: 75 A. 757,77 N.J.E. 97
• Parties: SULK et al. v. TUMULTY.
• Court: New Jersey Court of Chancery

75 A. 757

77 N.J.E. 97

SULK et al.

v. TUMULTY.

Court of Chancery of New Jersey.

March 3, 1910.

Suit by Marguerite B. Sulk and others against Philip Tumulty. Decree advised for defendant.

Marshall Van Winkle, for complainants.

Tumulty & Cutley, for defendant.

GARRISON, V. C. This is a bill filed by a vendor against a vendee to compel the specific performance of a contract for the sale of real estate. The property in question is No. 140 Cornelison avenue in the city of Jersey City. There is but a single question presented. It is admitted by all parties that the building just mentioned, and which it was the intention of the parties to sell, as it now stands covers more land than that to which the complainant has paper title, and encroaches several inches upon the adjacent land to the north, which is in a different ownership. The complainant seeks to remedy this defect, and to show title in herself, by alleging and proving adverse possession. She produces a witness named Spengeman, who owned this land when it was vacant, and who, about 1882, erected the building as it now stands. He testified that he had procured a survey to be made, and located his building upon the lines of his lot as indicated by the surveyor. He had no intention nor desire to enroach upon his neighbor's land, and did not assert the right to do so, and did not intentionally do so, although it is the fact that he did. About 1888 he sold the property to the Mutual Benefit Life Insurance Company of Newark, who owned it for many years, and thence it passed into the ownership of the complainants. The sole question in this case is whether, under the circumstances, the court will force this title upon the defendant. In my view, it would not be a proper' exercise of the discretion which resides in the court in specific performance cases to require this defendant to take this title. Where the validity or marketability of a title depends upon facts outside of public records, the court should not force the title upon a defendant, unless the necessary proofs are available to him when he may have future need of them. Authority for and illustration of this principle will be found in the following cases: Meyer v. Madre-Peria, 68 N.J.Law, 258, 53 Atl. 477, 96 Am. St. Rep. 536 (Ct. of Er., 1902); Dobbs v. Norcross, 24 N.J.Eq. 327 (Runyon, Ch., 1874); Tillotson v. Gesner, 33 N.J.Eq. 313 (Ct. of Er., 1880); Cornell v. Andrews, 35 N.J.Eq. 7 (Runyon, Ch., 1882); Lippincott v. Wikoff, 54 N.J.Eq. 107, 33 Atl. 305 (Emery, V. C, 1895); Rutherford Land Co. v. Sanntrock, 44 Atl. 938 (Pitney, V. C, 1899), affirmed 60 N.J.Eq. 471, 46 Atl. 648 (Ct. of Er., 1900); Fahy v. Cavanagh, 59 N.J.Eq. 278, 44 Atl. 154 (Pitney, V. C, 1899); Barger v. Gery, 64 N.J.Eq. 263, 53 Atl. 483 (Stevenson, V. C, 1902); M. E. Church v. Roberson, 68 N.J.Eq. 431, 58 Atl. 1056 (Bergen, V. C, 1904); Zelman v. Kaufherr, 73 Atl. 1048 (Stevens, V. C, 1909); Deseumeur v. Rondel, 74 Atl. 703 (Garrison, V. C, 1909).

In the case at bar the facts outside the records which are necessary to be proven to make the title good, with respect to that part of the building which encroaches, are those to support a finding of adverse possession in the complainants and their predecessors in title. In the case at bar no one can be concluded with respect to this question, saving the complainants and the defendant; and, if a decree is made against the defendant, it will, of course, be no protection to him in any future proceeding by the owners of the adjacent property upon which his building impinges. He must, with respect to them, therefore be always...