Vogt v. Mullin

• Decision Date: 19 January 1914
• Citation: 89 A. 533,82 N.J.Eq. 452
• Parties: VOGT et al. v. MULLIN.
• Court: New Jersey Court of Chancery

89 A. 533

82 N.J.Eq. 452

VOGT et al.

v. MULLIN.

Court of Chancery of New Jersey.

Jan. 19, 1914.

Suit by Emma L. Vogt and others against William F. Mullin. On demurrer to the petition. Demurrer sustained.

Joseph Kahrs, of Newark, for complainants. Ralph E. Lum, of Newark, for defendant.

STEVENS, V. C. This is a demurrer to a bill for specific performance. The bill alleges a written agreement to convey land in Newark by deed of warranty free from all incumbrance. It states that this land is subject to a right of way, and then it charges that through mutual mistake there was an omission to mention in the writing that it was so burdened. The prayer is for reformation and for performance of the agreement as reformed.

Unless I undertake to overrule the case of Wirtz v. Guthrie, 81 N.J.Eq. 271, 87 Atl. 134, I must sustain the demurrer. Vice Chancellor Emery there holds that an executory agreement in writing, relating to land, cannot be reformed on the ground of mutual mistake, and then enforced. In the leading case of Woollam v. Hearn, 7 Vesey, 211, Sir William Grant shortly gives the reason: "This (parol) evidence is offered, not for the purpose of resisting, but of obtaining, a decree, first to falsify the written agreement, and then to substitute in its place a parol agreement to be executed by this court." The American editors of Leading Cases in Equity, in a note to this case, say (volume 2, 684 [3d Amer. Ed.]): "As the statute of frauds expressly provides against the creation of any estate or interest in land without writing, it necessarily follows that, if a party who is seeking to obtain a specific performance of such a contract gives parol evidence to prove that the contract is vitiated by fraud or mistake, he necessarily destroys his own case, for the evidence shows that the contract as it stands is not the true one, and that the real contract is invalid."

The opposite view of Story and Pomeroy is rejected by the Vice Chancellor. The case in which he applied the rule is, I think, an extreme one. There the contract as written provided for the sale of two lots for $72,000. The real agreement was for three lots; one having been omitted by the draftsman through inadvertence. By his amended bill, the complainant set out the mistake and offered to convey all three lots for the price named. This offered a strong case for relief, and all the stronger because if he had set out the agreement as written and prayed specific performance of it, and, on the defendant's setting up the omitted provision, had submitted to perform that provision as well, he would, according to the English cases, have been entitled to relief. The reason is evident it is the...