Webster-Art & Strength Bldg. & Loan Ass'n v. Armondo

• Decision Date: 01 November 1940
• Docket Number: 124/542.
• Citation: 128 N.J.Eq. 219,15 A.2d 890
• Parties: WEBSTER-ART & STRENGTH BUILDING & LOAN ASS'N v. ARMONDO.
• Court: New Jersey Court of Chancery

15 A.2d 890

128 N.J.Eq. 219

WEBSTER-ART & STRENGTH BUILDING & LOAN ASS'N

v. ARMONDO.

124/542.

Court of Chancery of New Jersey.

Nov. 1, 1940.

Syllabus by the Court.

1. Title is not marketable where there is substantial doubt concerning either the law or the facts on which it is founded. Title may depend upon matter in pais and still be marketable.

2. Misnomer of the infant in proceeding for the sale of his lands, R.S. 3:17-16, N.J. S.A. 3:17-16, does not vitiate the proceeding. The infant is concluded by the decree for sale and order confirming sale.

3. The guardian's deed made pursuant thereto, despite the misnomer of the infant in the deed, conveys the infant's interest in the lands.

Suit for specific performance by the Webster-Art & Strength Building & Loan Association against Josephine Armondo.

Decree for specific performance.

Nicholas Albano, of Newark, for complainant.

Horace S. Bellfatto, of Newark, for defendant.

BIGELOW, Vice Chancellor.

The only question for decision is whether complainant has a marketable title to the land which is the subject of the litigation.

Henry Tesoroni died intestate in 1922, seized of the land, leaving him surviving his widow and four minor children, one of whom was Henry Tesoroni, Jr. In 1928, the widow presented to the Chancellor a petition for the sale of the lands of the four children, pursuant to the statute R.S. 3:17-16 etc., N.J.S.A. 3:17-16 et seq. The usual proceedings followed. After reference to a special master and his report, the mother was appointed special guardian for the infants and ordered to sell the property. She sold for $7,000 to one Michael Andriola. The sale was confirmed, the deed delivered and the purchase price paid. The proceedings are entirely regular upon their face, but throughout, and in the deed, the infant Henry is misnamed Edward Tesoroni, Jr. Does this misnomer cast such doubt upon the title of complainant, who holds under Andriola, that the title is unmarketable?

A title may be such that the title holder would likely prevail in an action of ejectment or in a suit to quiet title, and yet it may be unmarketable. A title is no't marketable where there is doubt concerning either the facts or the law on which it is founded. Pound v. Pleister, 106 N.J.Eq. 101, 150 A. 58; Id, 107 N.J.Eq. 577, 153 A. 907. But the doubt must be substantial. Rosenson v. Bochenek, 102 N.J.Eq. 543, 141 A. 753. In the absence of such doubt, the title is marketable. It may depend upon matter in pais and still be marketable. Rutherford Land & Improvement Co. v. Sanntrock, N.J.Ch, 44 A. 938; Id, 60 N.J. Eq. 471, 46 A. 648. It has been said that when, in a specific performance suit, objections to the title are overruled, the court must feel such confidence in its own opinion as to be satisfied that another court would not adopt another conclusion. Lippincott v. Wikoff, 54 N.J.Eq. 107, 120, 33 A. 305.

In the case before me, there is no doubt of the facts. It is entirely clear that an infant, Henry Tesoroni, Jr., age eleven years, owned a quarter interest in the land at the time of the proceeding for sale. No eleven year old child named Edward Tesoroni, Jr., or no person at all bearing that name, had any interest in the land, and Mr. and Mrs. Tesoroni had no child Edward. How the misnomer crept in, I do not know, but the fact of the mistake is clear.

The questions of law are whether Henry Tesoroni, Jr., is concluded by the decree in the proceeding for the sale of land, and whether the special guardian's deed passed his title to the grantee. Generally, a party to an action, although misnamed, will be concluded by the judgment or decree the same as if he were described by his true name. Advantage of the misnomer must be taken as soon as discovered by plea in abatement or motion, whereupon the true name may be inserted by amendment. Elbert v. Wilmington Turngemeinde, 7 Boyce, Del., 355, 107 A. 215; Collins v. Bugbee & Brown Co., 136 Me. 12, 1 A.2d 178. If no objection to the misnomer be made before judgment, it is waived, and proof may be received outside the record to show who is the actual party concluded. In re Fitzgerald's Estate, 252 Pa. 575, 97 A. 937; Proctor v. Wells Bros. Co., 262 Ill. 77, 104 N.E. 186, Ann.Cas.1915B, 273. See, also, Probasco v. Probasco, 3 N.J.L. 1012.

In our statutory proceeding for the sale of infant's lands, the infant is not served with process or notified in any way of the proceeding. The proceeding is entirely ex parte. The...