Opinion
No. 41/541.
03-13-1917
FISHER v. HURLEY et al.
William H. Morrow, of Belvidere, for complainant. George M. Shipman, of Belvidere, for defendants.
Counter suits between Jennie Fisher and John Hurley and others. Decree for the latter.
William H. Morrow, of Belvidere, for complainant. George M. Shipman, of Belvidere, for defendants.
BACKES, V. C. In these counter suits one bill is filed to rescind a contract for the sale of real estate which has been performed by the delivery of a deed, and the other is for the foreclosure of a mortgage given in part payment of the purchase price. Pursuant to a written contract to that effect, Mrs. Fisher, the defendant, conveyed to the complainant Hurley, on June 1, 1914, her farm in Independence township, Warren county, for $6,500, of which $2,750 was paid in cash, and the balance of $3,750 secured by the mortgage under foreclosure. The farm consists of two adjacent tracts, one of 11 plus and the other of 41 plus acres. The dwelling and farm buildings are all located on the smaller tract. Access from this tract to the larger one, with horse and wagonload, is impossible because of a stream and deep ravine. To get from the one to the other necessitates driving out on the highway, and thence through a private lane leading to the larger tract. The lane belongs to and is on the adjoining land of one Harris, who permitted Mrs. Fisher to use it, but denied that privilege to the complainant. During the negotiations for the sale Mrs. Fisher represented to the complainant that she owned the lane or a right of way over it, which she had the right to sell, and in her deed conveying the farm, therein describing the two tracts separately, granted as follows:
"Together with a right of way in and over a certain lane leading from the road known as the 'Hackettstown macadam road' to Petersburg, to the fields of the second tract of land above described, for the said party of the second part, his heirs and assigns, and his and their servants, and the tenants and occupants from time to time of the premises above described, and any other person or persons for his and their benefit and advantage, in common with the said Enos Harris, his servants, and the tenants and occupants of his premises adjoining, at all times freely to pass and repass, on foot or with animals, vehicles, loads or otherwise, to and fro between the premises hereby granted and the said highway or road."
A feeble effort was put forth at the hearing to disprove the making of the representation in the course of the negotiation, and the agreement of sale which makes no mention of the lane is pointed to in support of the denial. But, in view of the fact that the lane was obviously the only means of ingress and egress to the 41-acre tract, there can be little or no doubt that her right to use it and her power to transfer the right was advanced by Mrs. Fisher to induce the sale. The recital in the deed, as above quoted, reflects her action and conduct in the transaction, and indeed of and in itself constitutes the representation complained of. That the representation was untrue, that it was of material importance to the contract, and that its falsity resulted in great injury to the complainant is not controverted. For two years the complainant occupied the premises and cultivated the farm, using the lane for access, when he was ordered to desist by the owner. He is now entirely shut off from the use of the most fertile and profitable portion of his purchase. Promptly upon the discovery of the fraud he requested the return of his purchase money and the surrender of the mortgage security, and forthwith filed his bill to enforce his demands. The law is entirely settled in this state that in these circumstances the complainant is entitled to the aid of this court to effect a recission. The rule in equity is discussed and cases cited in Du Bois v. Nugent, 69 N. J. Eq. 145, 60 Atl. 339.
The claim that the representation was made innocently, in ignorance of the true situation, while it may be a balm to conscience, does not relieve the defendant from accountability. Id. But the claim is not supported by the testimony. Mrs. Fisher owned the adjoining farm over which the lane runs and sold it to Harris about two years before the present sale to Hurley, without reservation. This she knew and realized. She was also aware that her use of the lane in the meantime was only by leave and license of Harris, and it is difficult to accept that she believed the truth of her assertion of ownership or control.
A further contention by the defendant is that the only relief the complainant is entitled to is compensation. Testimony was introduced to show that by the building of a road over the complainant's land more than 800 feet in length and a bridge across the stream and gulley at a cost ranging in estimates from $270 to upwards of $1,300 the two tracts could be joined, forming a more convenient way from one to the other than that granted by the defendant's conveyance. I know of no equitable rule nor has any authority been brought to my attention which would require the complainant to surrender any portion of his land for the proposed roadway and bridge, or to construct and maintain them, even though the defendant stands ready to reimburse him for his outlay. He is entitled to the enjoyment of his land to the full extent as represented and granted to him, and anything short of this would deprive him of a substantial part of his bargain, and impose upon him a hardship resulting from the defendant's inequitable conduct which he did not assume and is not obliged to bear.
A decree may be entered directing a reconveyance, the cancellation of the mortgage, and for the consideration money paid, with interest; the complainant first accounting for the use of the land during his occupancy; allowances to be made to him for taxes, interest, and permanent improvements, etc.,concerning which I will hear further testimony. The money decree will be imposed as a lien upon the land. The complainant is entitled to costs.