Weidenbaum v. Raphael

• Decision Date: 13 May 1914
• Citation: 83 N.J.Eq. 17,90 A. 683
• Parties: WEIDENBAUM et al. v. RAPHAEL et al.
• Court: New Jersey Court of Chancery

90 A. 683

83 N.J.Eq. 17

WEIDENBAUM et al.

v. RAPHAEL et al.

Court of Chancery of New Jersey.

May 13, 1914.

Bill for specific performance by Wolf Weidenbaum and others against Pauline Raphael and others, heard on bill, answer, replication, and proof. Conditional decree for complainants.

Nathan H. Berger, of Newark, for complainants. William Tyacke, Jr., of Newark, for defendants Raphael. Isaac Spangenthal and Edward R. McGlynn, both of Newark, for defendants Herzfeld and Dreyfus.

EMERY, V. C. This is a bill for specific performance of a written agreement for sale of land in Newark made between Maley Weidenbaum, the wife of Wolf Weidenbaum, as purchaser, and defendant Pauline Raphael and Morris Raphael, her husband, as vendors, and defendants Herzfeld and Dreyfus, who purchased the land under a subsequent agreement. The purchase price of the land was to be $12,000, while the purchaser agreed to pay as follows: $100 on signing the agreement; $6,000 by accepting the conveyance subject to a first mortgage which the purchaser agreed to assume; $4,250 by executing and delivering a purchase-money mortgage as a second lien on the premises, payable $100 every six months, with 5 per cent. interest; and $1,650 in cash on purchasing title. The vendee died intestate before the day fixed for passing title, leaving her husband surviving and three heirs at law, infants aged respectively, 12, 10, and 8 years of age. The husband has been appointed administrator of his wife. No inventory or account has been filed; but it is proved that the total personal estate does not exceed $2,000.

After the death of the vendee the vendors entered into another agreement to sell premises to the defendants Herzfeld and Dreyfus for the sum of $12,000, $100 paid in cash on the date of the agreement, $6,000 by accepting a conveyance subject to a mortgage of that amount, $3,500 by a purchase-money mortgage, and $2,400 in cash at. the settlement. Subsequently the conveyance was made under this second agreement, and the second mortgage for $3,500 was given to the vendors, and the balance of the purchase money (due after deduction of liens) was paid.

Before the receipt of the deed or the payment of any sum, except the $100 deposit, the second purchasers had notice of the prior contract, and are therefore not bona fide purchasers, except as to the amount previously paid, $100, and are protected only to that extent against the previous contract. Haughwout v. Murphy (Err. & App. 1871) 22 N. J. Eq. 531; Brinton v. Scull (Grey, V. C, 1897) 55 N. J. Eq. 747, 35 Atl. 843. The bill is filed by complainant individually, as administrator of the estate and next friend of the infant...