(Syllabus by the Court.)
Appeal from court of chancery.
Suit by Lawrence O'Connor against Peter Wrrell and others. Decree for plaintiff, and defendants appeal. Affirmed by divided court.
Following is the opinion of the court below: "This is a suit for the specific performance of a contract to convey lands. The complainant asks that the defendants be compelled to convey to him a strip of land in the city of Bayonne, which bounds on the Newark Bay, which he has taken possession of under the contract he seeks to enforce, and has improved, and which now constitutes his home. The defendants are the heirs at law of Martin D. Tyrrell, deceased, and as such are tenants in common of the lands in question. With the exception of James Tyrrell, who lives In New York, they are all residents in Ireland. By a power of attorney signed and sealed by them, respectively, on the 23d day of August, 1893, the defendants resident in Ireland constituted James Tyrrell their attorney 'to [quoting the language of the instrument in material parts] ask, demand, and receive all rents and arrears of rent which now are, or shall hereafter grow, due or owing to us [from tenants of the lands in Bayonne above mentioned]; to give proper acquittances and certain discharges thereof; and in default of payment thereof, or any part thereof, * * * to proceed by a suit or suits at law for the recovery thereof, as by him, our said attorney, shall be thought fit; and to lease said lands, tenements, and hereditaments * * * to such person or persons, and for such a term or number of years, or for life or lives, and at and under such yearly or other rates, as he shall think fit, taking such security therefor as he shall deem proper; or otherwise to mortgage or sell the same absolutely in fee simple for such price or sum of money as he shall think fit or convenient; and also, for us and in our name, and as our act and deed, to sign, seal, execute, and deliver such deeds and conveyances for the leasing or the sale or mortgage thereof, or any part thereof, with such clauses, conveyances, and agreements to be therein contained, as our said attorney shall think fit and proper; hereby ratifying and confirming all such leases, deeds, conveyances, bargains, and sales which may at any time hereafter be made.' This power of attorney, though duly signed and sealed by the Irish defendants, does not appear by the certificate of the United States consul before whom they appeared, appended to it, to have been acknowledged in accordance with the requirements of our statute. On the 20th of April, 1894, James Tyrrell, for himself, and as the agent of the other defendants, entered into a written contract with the complainant, in the names of all the defendants, that in consideration of $7,250, $250 of which was then paid in cash, $5,000 of which was to be paid upon delivery of the deed, and the remainder of which was to be satisfied by assumption of the payment of a mortgage of $2,000 then a lien upon the property, that the defendants would sell the premises in question to the complainant in fee, free from incumbrances, and deliver a deed thereof to him on or before the 21st day of May then next. Subsequently, upon an examination of the title to the property, it was discovered that one of the certificates of acknowledgment to the power of attorney to James Tyrrell was defective, as stated, and that it did not appear that the power of attorney, though recorded, had been duly proved or acknowledged. Because of this defect it was deemed that a deed from the agent would be without validity. Revision, p. 164, § 64; 1 Gen. St. p. 876, § 117; Earle v. Earle, 20 N. J. Law, 347, 361; Force v. Dutcher, 18 N. J. Eq. 401, 403. Consequently, that time might be afforded to send a deed to Ireland for execution by the defendants there, a new agreement for sale was made between the same parties on May 8th, which embodied the terms of the agreement of April 20th, fixed
June 26th for the delivery of the deed, and provided that the complainant should have possession of the property bargained for; stipulating in respect thereof in this language: 'Said party of the second part shall have possession of the said premises on the 14th day of May, 1894; and, in the event of the failure of said parties of the first part to deliver the deed at the time and in the manner hereinafter referred to, the parties of the first part hereby agree to repay to the said party of the second part the said sum of $250 heretofore paid as part of the consideration money, and, in addition thereto, such sum, not exceeding $1,250, as said party of the second part shall have paid upon the examination or guaranty of the...
