145 A. 2 (N.J. Ch. 1929)



R. V. Stein, of Elizabeth, for complainants.

Bill by Karl Schaffer and others against Alexander J. Holtzman. On final hearing. Decree for complainant.

R. V. Stein, of Elizabeth, for complainants.

BUCHANAN, Vice Chancellor. Complainants sue to reform a deed given by them as assignees in insolvency of one Sigmund Welt, to the defendant Holtzman, pursuant to an order of the orphans' court confirming a contract of sale made by the assignors with the defendant prior to the assignment for the benefit of creditors. The contract of sale provided that the vendee should assume the payment of a mortgage incumbrance upon the premises; and the orphans' court decree provided that the sale and conveyance should be consummated in accordance with the contract of sale. The deed of conveyance, as actually made by complainants, conveyed the premises subject to the mortgage, but omitted the clause whereby the grantee assumed the payment thereof.

The defendant, by his answer, alleges that the clause in the contract requiring him to assume payment of the mortgage was never agreed to by him, and was inserted in the contract by inadvertence and mistake onthe part of both parties to the contract. He also counterclaims, seeking a reformation of the contract of sale in this behalf.

The proofs show convincingly that while it is possible that the clause in question was not agreed to orally by the parties to the contract, nevertheless the clause was in the written contract, which was in the possession of both parties thereto prior to its execution, and there is no evidence or testimony whatever that the presence of the clause in the written contract was not observed by the parties to the contract before execution. There is therefore no ground for reformation of the contract, and the counterclaim will be dismissed.

The proofs show equally convincingly that the omission of the assumption clause in the deed of conveyance was by inadvertence and mistake on the part of both parties to the deed; a decree will be advised for complainant.