Turner v. Houpt

• Decision Date: 27 September 1895
• Citation: 53 N.J.E. 526,33 A. 28
• Parties: TURNER v. HOUPT et al.
• Court: New Jersey Court of Chancery

33 A. 28

53 N.J.E. 526

TURNER

v. HOUPT et al.

Court of Chancery of New Jersey.

Sept. 27, 1895.

(Syllabus by the Court.)

Bill by Lillian M. Turner against Henry J. Houpt and others to set aside an exchange of real properties. Heard on bill, amended bill, bill of revivor, and answers. Decree for complainant.

Frank McDermott, Robert S. Clymer, and Mr. Kuhlemeier, for complainant.

Lindley M. Garrison, for defendants.

PITNEY, V. C. The object of the bill is to set aside an exchange of real properties made between Albert L. Turner, the original complainant, and the defendant on the last days of May, 1891. By deed dated May 29, 1891, Dr. Turner and his wife, the now complainant, Lillian M. Turner, conveyed to Henry J. Houpt an hotel, called the "Norwood Inn," and some vacant building lots at Avon by the Sea, Monmouth county; and by deed of the same date the defendants conveyed to Mrs. Turner a farm and woolen-mill property in Maryland, called the "Mallalieu Mill," the one conveyance being the consideration for the other. The general allegation of the amended bill is that the defendant Houpt made false and fraudulent representations to Dr. Turner as to the quality, condition, and quantity of land in the Maryland property, and that the doctor was at the time suffering from mental disease to such an extent as to render him liable to be imposed upon by such false and fraudulent representations, and that he was imposed upon thereby. The circumstances are peculiar and complicated, and the case will be best understood by stating them somewhat in extenso, and in the regular order of time.

Dr. Turner was a physician, and practiced his profession up to the year 1888. At that time he was, and had been for several years, living in the city of New York. He had a fancy for real-estate operations, and was the owner of considerable real estate, among others the hotel and vacant lots in question at Avon by the Sea, formerly known as "Key East." He gave up the practice of his profession in 1888, and also his permanent residence in New York. At that time he spent his summers at Avon by the Sea, and his winters in Florida. He spent the winter of 1890-91 in Florida, with his wife. In March of that year he went North alone on business, and visited his sister in Connecticut. While there he suffered a very severe attack of the grippe, which affected his mind to some degree. He returned to Florida the latter part of March, and remained there with his wife till the latter part of April. His physical health improved, but the disturbance of his mind was noticeable by his wife and relatives, though not to persons who were not acquainted with him, or were not brought in close contact with him. He returned to the North with his wife in the latter days of April, 1891, stayed a few days in New York City, and then took up his residence in Philadelphia. He owned some real estate in the neighborhood of Philadelphia, and employed, as real-estate brokers, a firm of Barrows & Bliss in that city. Mr. Barrows is an elderly gentleman, past 80 years old; Mr. Bliss is a younger man. He placed in their hands for sale or exchange the Norwood Inn at Avon by the Sea. At that time the defendant was the owner of the mill property in question in Maryland, and had lived on it for at least a year. He placed that property in the hands of a real-estate broker in Philadelphia, by the name of Warbasse, for sale or exchange, with a description of the property. About the middle of May Mr. Warbasse met Mr. Barrows in the latter's office, and inquiries passed between them as to what either had for sale or exchange, and Mr. Warbasse mentioned to Mr. Barrows this Mallalieu property, and at Mr. Barrows' request wrote a description of it, in these words: "Farm of 400 acres, and a two-set woolen mill at Millington, Md., 69 miles from Philadelphia,—15 looms and 648 spindles, and full set of the best machinery to correspond. Building, 50x120; annex, 20x 40. Dyehouse and engine room attached. Farm of 400 acres, divided into fields of 40 acres each by hedge, wire, and post fences. Land, fine land, said to be as good a farm as there is in the state. Has 8,000 full-bearing peach trees, 9 tenant houses, store, 17-room mansion, farmer house, and barn, stable, and all necessary outbuildings in good order. The whole property is in good farming condition, and is valued at $40,000. Less mortgage of $12,000 and one of $5,000, at 6 per cent." This paper was shown to Dr. Turner by Mr. Barrows, and the result was an interview between Houpt and Dr. Turner at Barrows' office, at which Mr. Houpt made further representations as to his property and its qualities,—as to the cost, to wit, that the machinery in the mill had cost $30,000, that the property was rentable at a large rent, and that there was valuable iron ore and valuable marl upon it; and, with regard to the incumbrances, that the first mortgage was for $12,000 or $12,500, and the second one was for $5,000, and given to secure a note which could remain and be renewed as long as $200 was paid at each renewal at the end of three months.

In pursuance of these representations, on the 21st of May the parties entered into a written agreement in duplicate, in these words: "Philadelphia, May 21, 1891. This agreement, made in the city of Philadelphia the day and year above written, by and between H. J. Houpt of the city of Philadelphia, of the one part, and Dr. A. L. Turner of the city of Philadelphia, of the other part, witnesseth: That the said party of the one part agrees to convey by deed unto the said party of the other part all that certain farm and mill property known as the 'Mallalieu Mill Property,' and situate on the road leading from Millington to Church Hill, about one mile from Millington, in Queen Anne county, state of Maryland, said property containing in all about 400 acres, and more fully described in attached memorandum, together with all the mill machinery, etc., now on the place and belonging to the said party of the one part, said property to be free and clear from any and all incumbrances except the mortgages, amounting in total to sixteen thousand and nine hundred dollars ($16,900), and title to be marketable. And the said party of the one part agrees to take from the said party of the other part, in full and complete payment for the above property the hereinafter described property, which the said party of the other part agrees to give, i. e. all that certain property, situate in Avon by the Sea, county of Monmouth, and state of New Jersey, known as the 'Norwood Inn,' and consisting of two lots of ground, each 50 feet by 140 feet, to a 10-foot alley, and located at the southeast comer of Second and Norwood avenues, together with all the buildings and improvements thereon, and all the personal property connected therewith owned by the said party of the other part; also, all those nine (9) certain lots of ground, situate in the said town of Avon by the Sea, each 50 feet by 140 feet to a 10-foot alley, and located as follows: Five on the south side of Norwood avenue, between First and Second avenues, and numbered 112, 113, 115, 116, 117, on map of Key East, or Avon by the Sea, surveyed by E. G. Harrison & Son in 1883; and four (4) on the north side of Garfield avenue, between First and Second avenues, and numbered on said map 396, 397, 398, 400, —all this property consisting of the 'Norwood Inn' and the two lots on which it stands, and the other nine (9) lots abovementioned, to be free and clear from any and all incumbrance except a first mortgage of nine thousand dollars ($9,000), covering the whole, and title to be marketable. This agreement to be binding if each property is found to be on examination as described herein, and if the second mortgage on the farm and mill property can be arranged satisfactorily to the party of the other part. At time of settlement, interest, taxes, and Insurance to be adjusted by each party. This agreement is binding upon the heirs and executors of each party. H. J. Houpt. [Seal.] Barrows & Bliss, for Dr. A. L. Turner. [Seal.] Witnesses: E. H. Warbasse, E. H. Warbasse." Annexed to it, at the time it was executed, was the written description previously given by Mr. Warbasse to Mr. Barrows above set out. Dr. Turner was present, although his name was signed by Barrows & Bliss, and Mr. Warbasse was the witness. Within a very few days Mr. Houpt, Dr. Turner, and Mr. Barrows visited the premises in Maryland and were on the ground between an hour and an hour and a half. Dr. Turner made a cursory examination of them. They then returned to Philadelphia and signed the following addition to the agreement of May 21st: "The above-described properties have been accepted by both the parties named in this agreement. H. J. Houpt. [Seal.] Barrows & Bliss, for A. L. Turner. [Seal.] Witnesses: E. H. Warbasse, E. H. Warbasse." And on the 29th the deeds were made and executed. No examination of the title or for incumbrances was made by Dr. Turner. Instead thereof, he took an affidavit, made by Mr. Houpt, that the same was free and clear of incumbrances except $16,700. That affidavit was made on the 30th of May, and the deeds were presumably delivered on or about that day.

Between the execution of the agreement and the execution of the deeds, Mr. Houpt had renewed the note secured by the second mortgage, and paid $200 upon it, thereby reducing the incumbrance that much. Dr. Turner does not appear to have observed that the deed which he accepted, while not describing the farm by metes and bounds, did refer to the conveyances under which his grantors claimed, and that those conveyances called, respectively, for 264 and a fraction acres, and 6 and a fraction acres, in all 270 and a fraction acres; but, upon subsequent visits to the farm he did discover that the representation with regard to the peach trees and the iron ore and the marl and the quantity of land was untrue, and he complained of it to Mr....