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Tlie agreement was carried into effect by a conveyance and the payment of all the purchase-money. The bill alleges that it was orally represented by Norris that the premises contained an area of eighty-two acres and were part of a larger tract containing one hundred and fifteen acres, and that although the purchase price was fixed at a gross sum, nevertheless, in agreeing upon it, Straus relied upon said representation, and said price was fixed at the rate of, approximately, $150 per acre. The bill further alleges that Straus entered upon the land and had spent several thousand dollars in the improvement of it before he discovered that the representation was false in fact, and that the premises contained only sixty-nine and seventy-one one hundredths acres. He sues to recover back so much of the consideration paid as would represent the difference in value between a tract of eighty-two acres and one of sixty-nine and seventy-one one hundredths acres.
It is admitted that if the allegations of the bill are true, Straus is entitled to recover, but it is said he should have sued at law and not in equity.
It is well settled that in actions for specific performance the vendor may recover the price by suit in this court. The fact that a money judgment is sought is no objection. Moore v. Baker, 62 N. J. Eq. (17 Dick.) 208. It hạs also been decided that where a representation false in fact has been made, there is this difference between actions at law and suits in equity. At law, to maintain an action of deceit, the representation must (inter alia) be shown to be not cnly false in fact but false to the knowledge of the person making it, in other words, fraudulent. Cowley v. Smyth, 46 N. J. Law (17 V r.) 380; Eibel v. Von Fell, 63 N.J. Law (S.4 Vr.) 3; 64 N. J. Law (35 Vr.) 364. Equity will relieve if the representation be false in fact, though no conscious fraud be perpetrated. Eibel v. Von Fell, 55 N.J. Eq. (10 Dick.) 670; Dubois v. Nugent, 69 N. J. Eq. (3 Robb.) 145. ·
The bill alleges that the representation was made either fraudulently, for the purpose of inducing complainant to pay a higher price, or through defendant's mistake.
It is conceded by demurrant's counsel that this court has general jurisdiction in cases of fraud. The rule is thus stated by
Justice Dixon in Eggers v. Anderson, 63 N. J. Eq. (18 Dick.) 265, in delivering the judgment of the court of errors and appeals: "The court of chancery possesses a general jurisdiction in cases of fraud, as well in cases where the remedy at law is plain, adequate and complete as in other cases; but when the remedy al law is plain, adequate and complete, the court of chancery is reluctant to exercise its jurisdiction, and will not do so unless the administration of justice will thereby, evidently, be facilitated.” In the case in hand it appears to me that the administration of justice will be facilitated, if this court takes jurisdiction. In the first place, if the complainant should sue at law and should be able to show that the representation was material and false in fact, but should be unable to show that it was false to the knowledge of the person making it, he would fail; while here he would succeed. It would be an evident hardship to send him to law and then, if he failed, give him a remedy in this court, when this court is fully competent to pass upon the whole question. If, as the bill alleges in the alternative, there was mutual mistake, this court alone would be competent to deal with it.
Then the bill alleges that the price is still in the hands of the agent. This court is able to stay enough of the price in its hands to indemnify complainant, while at law the suit would be only against the principal for damages. No question is made of the jurisdiction to decree an abatement of the price when the acreage is materially less than that called for by the agreement.
1. 1 Gen. Stat. 1895 p. 349 authorized incorporation of rural cemetery associations to hold one hundred and thirty-five acres of land, and cast the management thereof on trustees elected by the lot owners, and exempted the land from taxation, and provided that the lots from time of interment should be inalienable, and allowed the holding of property in trust to apply income to improvements, and the investment of money accruing from sale of lots for the purpose of improvement of the land, and also provided that at least one-half the proceeds of all sales of lots should be first appropriated to the payment of the purchase-money of the land acquired, until the whole purchase-money should be paid, and the residue used to improve the grounds, and after the land is future earnings from the sale of lots shall go to the improvement and preservation of the cemetery. By supplement of March 14th, 1879 (1 Gen. Stat. p. 351 § 16), it is provided that any creditor, in addition to his right to vote by virtue of owning lots, shall be entitled to one vote for every $400 worth at par value of bonds, "stock," or other duly authorized evidence of debt he may hold against such association. A cemetery association under the act bought land jointly with another association, each taking the limit of land allowed, and gave to the purchaser certificates of shares in the proceeds of the sale of the lots as consideration.-Held, that the statute did not permit the giving of stock which at all times would be a lien on the proceeds, even after the lots were paid for; and hence the certificate issued by the association conferred no legal right, since it did not oblige the company to pay a definite price for the land, and disregarded the provisions obliging the company to appropriate one-half of the proceeds to the improvement of the property.
2. Held, also, that though the word "stock" was used in the supplement, it would be considered an inadvertence, and not sufficient to change the scheme of the statute.
3. Neither would the scheme of the statute permit two companies, each holding the limit of land, jointly to buy land, and jointly to give certificates for shares for the purchase price.
4. In a suit for specific performance of a contract to convey land, purchased by a cemetery association, and paid for by the issuance of certificates of stock, the association cannot urge that it is entitled to relief, 7 Buch.
East Ridgelawn Cemetery Co. v. Frank.
without passing on the question of the validity of the certificate, when the bill on its face shows that the certificate was issued in disregard of the scheme of Gen. Stat. p. 349, under which it was organized, and was the only consideration for the purchase.
Jr. John R. Hardin, for the demurrant.
Mr. Michael Dunn, contra.
STEVENS, V. C.
This bill is filed for the specific enforcement of an agreement to convey land and to pay off certain mortgages.
The complainant was incorporated September 30th, 1905, under the act to authorize the incorporation of rural cemetery associations. Gen. Stat. p. 349. After its incorporation it made an agreement (whether in writing or otherwise is not stated) with the defendant, Frank and one Pond, who subsequently conveyed all his interest to Frank, that they should convey, or cause to be conveyed, to complainant, free and clear of all encumbrance, a tract of land in Acquackanonk township, containing one hundred and twenty-five acres. This tract, with the exception of two parcels of land containing, respectively, one and two acres, they did in fact cause to be conveyed, as agreed. They also agreed to convey such other land, not exceeding ten acres, as might be necessary for the purpose of straightening out the cemetery lands.
The bill alleges that it was also agreed that they would convey to the West Ridgelawn Cemetery Company, the complainant being known as the East Ridgelawn Cemetery Company, one hundred and thirty-five acres, making," so the bill states, “two hundred and seventy acres in all,” and would (I quote from the bill) "accept and receive in payment and as a consideration price for said conveyance a certain interest in the proceeds of the sale of the said lands, after deducting certain charges and expenses and which interest in said proceeds of sale was agreed to be fixed at fifty shares per acre for the land conveyed to each cemetery, which amounted to 13,500 shares as
the aggregate amount.”
The bill then proceeds to state as follows:
East Ridgelawn Cemetery Co. v. Frank.
"And the said interest was to be evidenced by one or more certificates signed by your orator, and the said West Ridgelawn Cemetery (a body corporate) representing in the aggregate thirteen thousand five hundred shares and the same were to be issued and deliverd to the said Adam Frank
and that in pursuance of said agreement to purchase said lands your orator and the said West Ridgelawn Cemetery did issue and deliver to the said Adam Frank the said certificates evidencing such interest in the proceeds of sales to be made by your orator and the said West Ridgelawn Cemetery of the lands so conveyed and to be conveyed to them under said agreement."
The bill further alleges that to better effectuate the performance of the agreement and to indemnify complainant against the payment of the mortgages and to secure the conveyance of the remaining lands agreed to be conveyed, Frank assigned to the Passaic Trust and Safe Deposit Company certain of said certificates representing two thousand five hundred equal undivided shares in the said proceeds of sale of the lands of complainant and the said West Ridgelawn cemetery, in trust for those objects; that he has failed to pay off three mortgages on which there are now due $5,000, $3,750 and $5,500, respectively, and that he has failed to convey the remaining land agreed to be conveyed.
There are other allegations, but the above are the material ones. The complainant insists that it has a lien in equity on all shares issued “outside of the two thousand shares deposited with the trust company," and asks for an injunction restraining Frank from disposing of any of the shares and for a decree directing Frank to pay the mortgages and to convey the lands agreed to be conveyed and for which he has already received the full amount of shares to which he was entitled, not only for the land actually conveyed, but also for that which he agreed to convey and did not convey. The prayer is, further, that on Frank's failure to pay and convey, a receiver may be appointed to take Frank's shares and he be required “to make abatement of said consideration of fifty shares of each acre of land which he fails to convey.”
The bill is notable for its omissions. It does not state within what time Frank was to pay off the mortgages or otherwise perform his agreement. It does not state whether the agreement was in writing, and, of course, does not append any copy of it. It