Opinion
07-08-1914
STRATER v. FLYNN et al.
Frederic W. Smith, of Newark, for complainant. Philip W. Grece, of Jersey City, for defendants.
Suit by Catherine Strater against Mary Flynn and others. Decree for defendants.
Frederic W. Smith, of Newark, for complainant. Philip W. Grece, of Jersey City, for defendants.
GRIFFIN, V. C. (at the close of the proofs after hearing counsel). Catherine Strater the complainant in this suit, being the owner of a tract of land known as 809 Summit avenue, Jersey City, entered into an agreement for the sale of that property to Mrs. Mary Flynn for the sum of $2,000, the title to pass on the 1st day of October, 1910, the deed to be a full covenant, warranty deed The contract is not signed by Mrs. Flynn but is admitted by her to have been a binding contract Mr. William Grece, since deceased, searched the title and discovered a bail bond about ten years old, executed by a former owner of the property, Mrs. Strater's husband. Mrs. Strater discussed the matter of the removal of this bail bond with Mr. Grece, the attorney of Mrs. Flynn, There was at the same time a mortage held by the Sun & Evening Sun Building & Loan Association of New York upon which there was about $800 due.
On October 3d Mrs. Flynn entered into possession with the consent of the complainant About a week after she entered into possession Mrs. Strater came to her, and, under representations, procured her to accept the return of the $100 deposit and procured a return of the receipt. I am satisfied that it was not the intent of Mrs. Flynn to abandon her contract at that time; and I am not so certain that the receipt was not procured by Mrs. Strater from Mrs. Flynn in a fraudulent manner. Be that as it may, the parties appeared to be in negotiation for two or three months regarding this property, when, finally, the check of $1,500 which Mrs. Flynn was to receive from the building and loan association, from which she had borrowed money to make up the purchase price of $2,000 (she having $500 of her own), was returned, and in the same month, after the return of this receipt, an action of ejectment was brought by Mr. Nonnebacher, of whom mention will be hereafter made. It seems that the Sun & Evening Sun Building & Loan Association called the attention of Mrs. Strater to the fact that her dues were in arrears, and threatened legal proceedings. This was about October 5, 1910. Apparently with the idea of paying off this building and loan mortgage, Mrs. Strater executed a mortgage to Hieronymus Nonnebacher for $850, and with the moneys she received from this mortgage she paid off the Sun & Evening Sun Building & Loan mortgage. This mortgage was afterwards canceled on March 24, 1913. On the 2d of December, 1910, Mrs. Strater made a deed to Hieronymus Nonnebacher for the sum of "one dollar and other consideration," which was acknowledged December 3, 1910, and recorded in the register's office of Hudson county on the 5th day of December, 1910. Having this deed for the property (which divested Mrs. Strater of the power to carry out her contract and apparently withoutany information being given by Mrs. Strater to Mrs. Flynn that she did not intend to carry out the contract, or had put the property out of her possession so that she could not do it, by means whereof Mrs. Flynn did not return the money to the building and loan association until some time in January), Mr. Nonnebacher brought a suit in ejectment in the Hudson county circuit against Mrs. Flynn, and, according to the statement of counsel on both sides, Mr. Nonnebacher's attorney offered in evidence upon the trial not only his deed, but also this receipt given to Mrs. Flynn, and, on the case being submitted to the jury, the jury decided in favor of Mrs. Flynn and against Mr. Nonnebacher. This must have been on the theory that there was a present existing agreement between Mrs. Flynn and Mrs. Strater whereby Mrs. Strater was bound to 'convey this property to Mrs. Flynn on the payment of the purchase price, and the deed to be in full covenant, warranty deed; because on no other theory could the jury find such a verdict, and it must have found that Mr. Nonnebacher took with knowledge of Mrs. Flynn's rights in the premises.
In this situation of affairs the complainant caused this bail bond (which was a cloud on the title) to be removed about March, 1013; and, having during all of these years permitted it to remain there, she thus was in no position, from the date of her contract down to March, 1913, to make a delivery of the deed in accordance with the terms of her agreement, for two reasons: First, this bail bond existed; and, second, on December 2, 1910, she conveyed this property to Mr. Nonnebacher by a deed recorded December 5, 1910, and Mr. Nonnebacher reconveyed to her the same property on March 21, 1913.
A further objection to any decree of specific performance would be that during this period of years she put it out of her power to perform the contract within a reasonable time; and, while in such contracts time is not usually of the essence of the contract, a period of upwards of two years after the contract was made, and the owner of the property conveys it to another, and thus disenables herself to perform the contract, renders a decree for specific performance in her favor improper.
On the question of rescission of the contract, both parties agree that the contract can be treated as rescinded. The question then comes down to charging the defendant for mesne profits for the reasonable value of the use of the premises, after deducting such sums as she may have expended for the betterment and improvement of the property.
I am not so clear that, in the shape this case is, a court of equity has jurisdiction, on a bill for the rescission of a contract, to provide for an accounting, although my impression is that such account can be taken. Counsel will submit authorities on this point. In so far as Mrs. Strater Is concerned, she cannot be allowed for any profits or income of the property during the time that she was out of possession; that is, during the time the title was out of her name; I mean from December 20, 1910, until March 21, 1913. During that period the property was in Nonnebacher, and not Mrs. Strater, and she cannot, in this suit, claim for any mesne profits or for the use and occupation.
The decree will be for the rescission of the contract, with an accounting, excluding the period that she was out of possession, if it should appear that this court has authority to make such accounting.
Mr. Smith (about the matter of possession at this stage): If your honor please, I assume that the decree or order which will be made by your honor will cover, under your opinion, only the question of rescission. I think some mention should be made as to the present right of possession; and, if necessary, the complainant be put in a position where a writ of assistance, or any writ that might necessarily issue, may issue.
THE VICE CHANCELLOR. If the contract is rescinded, of course that puts it at an end.
Mr. Smith: The trouble is that if the defendant does not move we are again in the same position that we have been in for three years.
THE VICE CHANCELLOR. No; no; it will not happen a second time.
Mr. Smith: The defendant will not move.
Mr. Grece: Oh, yes; didn't she
THE VICE CHANCELLOR. Now, gentlemen, I will not listen to you on that. I have dictated my opinion on the matter, and when it comes to the decree all of those matters will be determined. The question now is whether the court will have, upon the rescission of this contract, power to order an accounting. I am inclined to think it has, but at present I won't decide that.