Per Curiam.
¶1
The decree appealed from will be affirmed, for the reasons expressed in the opinion filed in the court below by VieeChancellor Bigelow.
¶2
For affirmance
— The Chief-Justice, Trenchard, Parker, Campbell, Lloyd, Case, Bodine, Donges, Yan Bus-kirk, Kays, Hetfield, Dear, Wells, Kerney, JJ. 14.
¶3
For reversal
— None.
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Case posture Posture On appeal from a decree of the court of chancery advised by Vice-Chancellor Bigelow, who filed the following opinion:
This is a suit for the specific performance of a contract dated October 3d 1926, whereby defendant agreed to convey certain land to complainant by deed of warranty free from all encumbrances in consideration of $1,600. When this contract was made defendant was, as he still is, the owner of only an undivided eight-ninths of the premises. By the amended bill of complaint, complainant tenders to pay the purchase price less an abatement by way of compensation for the outstanding one-ninth interest.
The first defense is this: That when the contract was made, complainant knew that defendant was only a tenant in common. I find that this is the fact although the testimony is conflicting. The outstanding interest belonged to John Kearney, a brother of defendant, who disappeared in 1922 and has not since been heard from. It is suggested by counsel for complainant that since John has been absent over seven years, defendant could institute a proceeding to have him declared to be dead and thus perfect his title. But defendant is only one of eight heirs of John and could add to his title in this manner only a one-seventy-second part. I think that Peeler v. Levy, 26 N.J. Eq. 330 , controls and that complainant is not entitled to the relief asked, namely, a conveyance of the defendant's interest upon payment of the purchase price, less an abatement.
The defendant also pleads laches. The contract called for delivery of the deed December 15th, 1926. The bill of complaint was filed January 30th, 1929. Complainant explains this delay on the ground that the parties in January, 1927, agreed orally to extend the time for passing title until May, 1929, when they anticipated that John would be declared dead and that he brought the suit immediately upon a repudiation of the contract by defendant. In my opinion, an agreement to extend the time for passing title more than one year, is within the operation of the statute of frauds and cannot be proved by parol evidence. This leaves the delay in bringing suit unexplained, so this defense should prevail.
Defendant, by way of counter-claim, prays that the contract be canceled on the ground that it was executed under a
mutual mistake, in that the parties only intended to contract for the conveyance of an undivided eight-ninths of the land. The evidence is insufficient to establish the counter-claim.
Both the bill of complaint and the counter-claim should be dismissed. Source: CourtListener
