Opinion
04-11-1887
ANGLECEY v. COLGAN.
Mr. Bentley, for complainant. Mr. Newbold, for defendant.
On bill for relief. Motion for preliminary injunction.
Mr. Bentley, for complainant.
Mr. Newbold, for defendant.
BIRD, V. C. The complainant, Anglecey, asks for an injunction restraining the defendant, Colgan, from executing a judgment at law in ejectment against him. An order to show cause was awarded. Is Anglecey entitled to a preliminary injunction, as the case now stands? Taking the statements of the bill, it appears that one K. was the owner of four lots of land, which were platted and mapped on the map of Jersey City, and numbered 93, 97, 98, and 99. On June 1, 1875, K. conveyed said lots to one B., and B. secured a partof the consideration money by his bond and a mortgage on lot 97, together with other property, for $3,000; that K. foreclosed this mortgage, and, at sale made by the sheriff, became the purchaser of said lot 97, and took a deed therefor; and that K. went into the possession of said lot, and occupied the house thereon, and on twenty-fifth April, 1879, sold and conveyed to Anglecey. The bill states that K. represented that he was the owner of said house and land, and then states that all of the deeds refer to said lot by lot and "block" number, "referring to the map, and that said lot ninety-seven, on said map referred to in said deeds, is twenty-three feet four inches (23 ft. 4 in.) in width, but that the house upon said lot ninety-seven, (97,) which was erected for many years before Kelly sold" it to B., is about twenty-five feet in width, "and was located about two feet eight inches on the northerly side of lot ninety-eight."
It appears that the other three lots (93, 98, and 99) were, in 1876, conveyed by said Kelly to one Colgan and his wife, who is the defendant, and that afterwards (1878) said Colgan conveyed his interest to his wife; and that she brought her action at law in ejectment, against Anglecey, to recover that portion of lot 98, being about two feet and eight inches, which is covered by the house standing principally on lot 97, and which was standing there before the land was mapped and platted into lots; and that in that action Colgan recovered a judgment, and now threatens to execute. The bill then states that the complainant, Anglecey, has other evidence which he was unable to produce at the trial of the action at law, further stating that said Kelly knew all about the arrangements; but it does not appear that Kelly was subpoenaed, or that he could not be reached; and also that said B. was subpoenaed, but failed to appear, and that his testimony is important.
Now, is there any equity in this?
First, as to representations. What were they? When Kelly sold lot 97 to Anglecey he was in possession of the house which had for a long time stood partly on lot 98, which last lot was then owned by the defendant. Such possession of the house by Kelly may have been some advertisement to the world that he was the owner, or had some rights or interests in all of the land which it covered. It was enough, perhaps, to put any one bargaining for lot 98 upon inquiry. But was the fact of possession of the house enough to justify Anglecey in dispensing with all further inquiry as to the title and quantity of land? Was it enough when the deed which Anglecey accepted referred to the number of the lot, and to the map, which was a matter of record, and which correctly described the lot, giving its true width? It would seem that, if the possession by Kelly was an advertisement of ownership of any value in determining the equity of the parties, the unequivocal advertisement or notice in the deed that there was a map of the premises, a public record, should be at least of equal account. Undoubtedly, Anglecey was bound to heed that notice. Kelly sold to him lot numbered 97, on a certain map, which was as potent, to all intents, as though it had been copied in or attached to the deed.
In the second place it is said that Kelly represented that "he was the owner of the house and lot." But the bill does not show that Kelly represented that he was the owner of the two feet and eight inches of lot 98 covered by the house. Indeed, the bill does not show that that particular question was in any sense alluded to by the parties. Nor does the bill state that the complainant, Anglecey, believing such representations to be true, relied upon them, and made the purchase with the full conviction that he was entitled to all the land covered by the house.
In the third place, it is too plain for discussion that no equities arise from anything that was done or omitted at the circuit. It does not appear that Kelly was subpoenaed. B., who was subpoenaed, did not attend; but it does not appear that the court refused to postpone the trial. I can see no fraud, nor any mistake or surprise, requiring the interference of this court.
I will advise an order setting aside the order to show cause, and dissolving the ad interim restraining order. The costs will abide the final determination of the suit.