Haber v. Goldberg

• Decision Date: 27 November 1918
• Citation: 92 N.J.Law 367,105 A. 874
• Parties: HABER v. GOLDBERG.
• Court: New Jersey Supreme Court

105 A. 874

92 N.J.Law 367

HABER

v. GOLDBERG.

Court of Errors and Appeals of New Jersey.

Nov. 27, 1918.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Hill Haber against Harris Goldberg. From a judgment of the Supreme Court on appeal from district court affirming a judgment for plaintiff, defendant appeals. Affirmed.

John H. Sheridan, of Hoboken, for appellant.

Isador Haber, of Town of Union, for respondent.

WALKER, Ch. This was a suit by a broker for commissions in a real estate transaction—whether it was a sale or exchange will be treated of hereafter. The action was brought in the second district court of Jersey City. The plaintiff had judgment, and defendant appealed to the Supreme Court, where the judgment was affirmed. Appeal was thereupon taken to this court.

The plaintiff had brought the defendant and a third party together, and they entered into an agreement in writing for conveying from each to the other certain real properties, and at the same time defendant signed an agreement to pay to the plaintiff the sum of $300 "as commission for the sale of my property (describing it shortly) to be paid on the date set for the delivery of the deed." In the same agreement entered into by the defendant with the third party the defendant agreed to convey to the third party certain lands described, and the third party agreed to convey to the defendant certain lands described, the difference in value of the respective premises to be secured by mortgage.

The defendant-appellant contends that what the parties agreed to do was to "exchange," not to "sell," their respective properties, and that as plaintiff had no agreement for commissions on an "exchange" he cannot recover under the statute of frauds.

The pertinent provision of the statute invoked is section 10, Comp. Stat. p. 2617, amended P. L. 1911, p. 703, Comp. Stat., First Supp., p. 747. The enactment is:

"No broker or real estate agent selling or exchanging land for or on account of the owner shall be entitled to any commission for the sale or exchange of any real estate, unless the authority for selling or exchanging such land is in writing, and signed by the owner or his authorized agent, or the authority of the broker or real estate agent to make a sale or exchange of such land is recognized in a writing or memorandum signed by the owner or his authorized agent, whether or not such writing or memorandum is signed by said owner or agent before or after such sale or exchange had been effected, and the rate of commission on the dollar shall have been stated therein."

There is a clearly defined distinction between a sale and an exchange of land, and the statute just quoted recognizes that distinction. The words "selling or exchanging" and their equivalent "sale or exchange" occur five times in the section, and would appear to have been deliberately used by the Legislature with reference to the law of conveyancing.

Speaking of conveyances by the common law, Blackstone says:

"An exchange is a mutual grant of equal interests, the one in consideration of the other. The word 'exchange' is so individually requisite and appropriated by law to this case, that it cannot be supplied by any other word or expressed by any circumlocution. The estates exchanged must be equal in quantity; not of value, for that is immaterial, but of interest: As fee simple for fee simple, a lease of twenty years for a lease of twenty years, and the like." 2 BI. Com. 323.

Only one conveyance is required. Burdick on Real Prop. (1914) p. 606. A form of this sort of deed is to be found in Birdseye's Abbott's Clerks' & Conveyancers' Assistant (3d Ed.) at page 686. It provides: This indenture made, etc., between A. B., etc., of the first part, and Y. Z., etc., of the second part, witnesseth: That the party of the first part has given and granted, etc., to the party of the second part, etc. (describing the land). To have and to hold, etc. And the party of the second part has likewise given and granted, etc., to the party of the first part, etc. (describing the land), in exchange of and for lands hereinabove mentioned of the party of the first part. To have and to hold, etc. Provided, that if it shall happen that either of the parties, etc., shall at any time hereafter by color or means of any former or other conveyance, or otherwise howsoever, be ousted or evicted of and from the possession of their premises, etc., or any part thereof, then and in such case the grant and conveyance made by these presents shall be utterly void and of no effect; and thenceforth it shall and may be lawful to and for the parties so ousted or evicted, into his or their former premises, etc., to re-enter and the same to have again, repossess and enjoy as of his and their former estate.

This last and distinguishing feature of a deed of exchange is expressly noticed by Judge Sharswood in Gamble v. McClure, 69 Pa. 282, 284, where he observed that undoubtedly where there is a technical exchange of lands the law annexes, not a mere implied covenant of warranty, but an actual warranty with a condition of re-entry, so that if the title to either tract of land turns out to be bad, and the party or his assigns should afterward be evicted, he or they can recover back their tract which was given in exchange. But to produce this legal consequence it is absolutely necessary that the word "exchange"—"excambium"—should be used. No other word can supply its place, however equivalent its significance. Co. Litt. 50b, 384a. It has resulted from this old and well-established rule of law that technical exchanges have been entirely abandoned in modern conveyancing both English and American. The reason is obvious. It imposes on the purchaser of either tract the burden and risk of examining and being satisfied with, not only the title of the land which he purchases, but also that of the other tract which was exchanged for it. Hence mutual deeds of bargain and sale, with the usual covenants of title, are always preferred and adopted.

In Hartwell v. De Vault, 159 Ill. 325, 42, N. E. 789, the word "exchange" is used in the Illinois statute relating to dower (providing for dower in lands exchanged), and it was held to have the same meaning as at common law—as that expressed by Blackstone.

In Cass v. Thompson, 1 N. H. 65, 8 Am. Dec. 36, where parties entered into agreement to exchange farms in pursuance of which each conveyed to the other by a deed in which, for an expressed consideration in money, "he gave, granted, bargained and sold," it was held that...