7 Buch.

Newark v. Chestnut Hill Land Co.

times of very dry weather they allow an amount equivalent to the ordinary dry weather flow to escape from their reservoirs. Of course, all that the riparian owner is entitled to is the customary flow. In times of flood it would be rather a benefit to the land to have some of the water withdrawn from it; in times of high water the diminution of flow could hardly be felt; in times of low water only could there be any appreciable injury, and even then that injury would be non-existent in the case of Newark and Jersey City, if the equivalent of the low-water flow should be permitted to flow from the reservoirs. We must take account, too, of the modifying influence of the dam. It is thus seen that the question is one of considerable complexity, but after all, one, only, of unliquidated damages to be determined, under the above authorities, by the courts of law.

I have altogether omitted any reference to the pollution of the river by the Paterson sewers and by the factories which discharge their waste products into the river above the defendant's land. This does not add to the complexity of the problem, for it is clear that the complainants are not responsible for the damage thereby caused. In the case of several independent tort-feasors, each is responsible for his own act only. Even if the sewage be not so much diluted, and, consequently, more offensive to those who dwell along its banks, it is Paterson and the factories that are responsible for the pollution, and not Newark or Jersey City, er the East Jersey Water Company. In Doremus v. Paterson, 70 N. J. Eq. (4 Robb.) 296; on appeal, 71 N. J. Eq. (1 Buch.) 789, the city of Paterson, as a defence to the suit of the riparian owners, filed a cross-bill, making Newark and Jersey City parties on the ground that they were contributing to the injury by taking water that would otherwise have helped to lessen the nuisance. On application of the complainants the cross-bill was stricken

out.

But one other question remains to be considered, that of laches. It is said that this court should interfere because of the long acquiescence of the land company. Laches would be an equitable defence to a suit brought by the landowner to restrain Newark or Jersey City from abstracting the water. It is not a defence to the action at law. There the statute of limitations limits the re

covery. In a case like the present, the land company cannot bring ejectment. It must come to this court for an injunction if it would seek to regain the full flow of the river. But if it does so, it may be met by those equitable defences which prevailed in the cases already cited. There is no equity that would restrain it from recovering damages for such injury as it may prove it has suffered for the last six years, but there may be an equity that would prevent it from depriving the people of Newark and Jersey City of the use of the water in time to come, if those municipalities are willing to make compensation for what they propose to take.

The application should be denied.

GEORGE KUNTZMAN

V.

HARPER B. SMITH et al.

[Decided March 22d. 1910.]

1. The right of a senior mortgagee on the foreclosure of the junior mortgage is the right to foreclose, and not the right to redeem.

2. The court in a suit to foreclose a purchase-money mortgage brought by the mortgagee against purchasers from the mortgagor may not order a stay until the mortgagee has procured releases that will perfect the title to the land which he conveyed to the mortgagor by deed containing the usual covenants of warranty and seizin.

3. The covenant of seizin is broken, if at all, as soon as made.

4. The right of action for breach of covenant of seizin is in the grantee, and not in one claiming under him.

5. The covenant of seizin is not broken by the existence of easements or encumbrances not striking at the technical seizin of the purchaser, and a mortgage or an expectant right of dower does not affect the covenant.

6. A covenant of warranty runs with the land.

7. A breach of covenant of warranty does not arise unless there has been eviction by title paramount or by action brought.

in 1897.

dower;

This is a demurrer to a cross-bill. The original bill seeks to foreclose a mortgage made by Townsend Herbert to complainant It is not pretended that this mortgage was not made as alleged or that it has been paid. The defence, by way of crossbill, is that complainant, Kuntzman, on August 31st, 1897, was the owner of the property; that he, on that day, conveyed it to Townsend Herbert; that Herbert executed a purchase-money mortgage to Kuntzman for part of the price, and that at the time of the conveyance, Kuntzman's title was defective in two particulars—first, in that there existed against it inchoate rights of second, in that there was outstanding a mortgage for $845, not foreclosed in the suit in which Kuntzman acquired title, and in whose owner (Ringe) there existed therefore a right of redemption. If the date of this last-mentioned mortgage is correctly given (1893), what Ringe really has, however, if his mortgage be unpaid, is a right to foreclose and not a right to redeem, for the cross-bill alleges that the mortgage through which Kuntzman derived title was made in 1895, while Ringe's was made two years before. The cross-bill further alleges that Kuntzman having such defective title conveyed to Herbert "by deed (so the allegation is) containing the usual full covenants of warranty and seizin in fee-simple." There is then the further allegation that Townsend "likewise" (whatever that word may imply) conveyed to Julia Herbert (without saying by what sort of a deed), and that Julia Herbert "likewise" conveyed to Wahl, and that Wahl "likewise" conveyed to Smith, the complainant in the cross

bili.

On this somewhat slender foundation, the cross-bill insists that by reason of the covenants contained in the complainant's, Kuntzman's deed, complainant "is liable to these answering defendants [the complainants in the cross-bill] to pay off, settle or otherwise procure an extinguishment of said liens and claims,"

and that they are ready to pay complainant any and all sums found to be due "as soon as the liens and claims herein set forth are extinguished and canceled."

Apparently, the pleader's idea is, not that the court should ascertain the damages arising out of any breaches of covenant contained in the Kuntzman deed and offset them against the amount due on the mortgage, but that it should order a stay until complainant has procured releases that would give a perfect title. It is needless to say that no such relief can be given.

The covenant of seizin is broken, if at all, as soon as made. Chapman v. Holmes, 10 N. J. Law (5 Halst.) 20; Carter v. Denman's Executors, 23 N. J. Law (3 Zab.) 260. If there is any right of action, it is in Herbert, not in defendant. Besides, "it is well settled," says Rawle, in his book on Covenants (at p. 63),

"that the covenant for seizin is not broken by the existence of easements or encumbrances which do not strike at the technical seizin of the purchaser. * So with respect to a judgment, a mortgage, or the expectant right of the wife to dower, however much these may operate as a breach of the covenant against encumbrances, they do not affect the covenant for seizin since a judgment, or right of dower do not operate to divest the technical title or seizin of the grantor, and a mortgage, although in strictness it purports to pass the legal title, yet is almost universally regarded at the present day as a mere security for the payment of the debt."

As to the covenant of warranty, which runs with the land, it is not alleged that there has been either eviction by title paramount or action brought, consequently no breach of covenant has been shown. Carter v. Denman, supra; Kuhnen v. Parker, 56 N. J. Eq. (11 Dick.) 286.

I think the demurrer to the cross-bill should be sustained.

1. In an action for specific performance, the vendor may recover the purchase price.

2. A false representation must be false to the knowledge of the person making it in order to sustain a legal action of deceit.

3. Equity will relieve from false representations made in the sale of realty, whether they were intentional or made through mistake.

to pay

4. Complainant sued to recover so much of the consideration paid defendant for land as would amount to the difference in value between a tract of eighty-two acres and sixty-nine acres, the bill alleging that defendant falsely represented. either fraudulently to induce complainant a higher price, or through mistake, that the land contained the larger acreage.-Held, that the chancery court has general jurisdiction in cases of fraud, whether the legal remedy is adequate or not, though, where the legal remedy is adequate, it will not interfere unless justice will be facilitated thereby; that it would be in the present case, since, if the misrepresentation was not knowingly false, a law court would not have jurisdiction, while the chancery court would, especially where the purchase price was so placed that a court of equity could impound it to

abide the result.

Mr. Edmund Wilson, for the demurrant.

Mr. Enright, for the defendants.

STEVENS, V. C.

The bill alleges that complainant entered into a contract with defendant Norris on July 22d, 1908, whereby Norris sold and agreed to convey to Straus certain farm lands

"containing eighty-two acres more or less, bounded on the north by the

Chapel

and on

Hill road and lands of Corcoran and east by lands of Parmly the south by Navesink road and on the west by the New Jersey

Southern R. R. for the price of $37,500."