Thomas v. Flanagan

• Decision Date: 26 February 1926
• Citation: 132 A. 305
• Parties: THOMAS v. FLANAGAN et al.
• Court: New Jersey Court of Chancery

132 A. 305

THOMAS

v. FLANAGAN et al.

Court of Chancery of New Jersey.

Feb. 26, 1926.

Bill in equity by Alderwin S. Thomas against Cornelius Flanagan and another. On motion to strike out the bill. Order striking bill advised.

Atwood C. Wolf, of Jersey City, for complainant.

Darling, Barnes & Dowden, of Jersey City, for defendants.

BENTLEY, V. C. On motion to strike out a bill.

On April 3, 1925, complainant's assignor entered into a contract to purchase real property. The agreement was reduced to writing, and the complainant seeks specific performance thereof. Two reasons are assigned by the defendants for their motion; one being that the bill alleges upon its face that the defendants have not at any time been ready, willing, and able to convey to the complainant. With this I have no difficulty. The defendants seek to draw the conclusion from this language that the complainant means only that the defendants have never been able to make title. That is not so. It means just what it says upon its face, to wit, that, whether or not they have ever been able, they have never also been ready and willing to perform their contract. Whether or not they have ever been able and willing, they have never been ready. Furthermore, it is within the undoubted power of this court to decree specific performance of such a contract with application of the purchase money to pay outstanding liens, or require compensation for deficiencies or indemnity. Stein v. Francis, 109 A. 737, 91 N. J. Eq. 205.

The other objection while highly technical, is more troublesome. Both of the defendants, who are man and wife, signed the contract, but the certificate of acknowledgment is in the following unsatisfactory form:

"State of New Jersey, County of Hudson, ss.: "Be it remembered that on this 7th day of April, 1925, before me the subscriber, a notary public of New Jersey, personally appeared Cornelius Flanigan, who, I am satisfied, is the grantor in the within agreement named; and I, having first made known to him the contents thereof, and did acknowledge that he signed, sealed, and delivered the same as his voluntary act and deed, for the uses and purposes therein expressed.

"And the said Mary Flanigan, being by me privately examined, separate and apart from her husband, did further acknowledge that she signed, sealed and delivered the same as her voluntary act and deed, freely without any fear, threats, or compulsion of her said husband.

"William Daly,

"Notary Public of New Jersey."

Chapter 37 of the Laws of 1918 provide that no estate of a married woman of lands in this state shall pass by her deed or conveyance without a previous acknowledgment before an appropriate officer; "such officer being satisfied she is the person named in such deed or conveyance and having first made known to her the contents thereof, and a certificate thereof written on, or under, or annexed to the said deed or conveyance, and signed by the officer before whom it was made." Section 1. Comparing the language of the certificate with that of the statute, it will be seen that, while the acknowledgment of the husband was unexceptionable, the certificate of the acknowledgment of the wife is defective, in that it does not state that the notary "first made known to her the...