Busath v. Prival

95 A. 136, 84 N.J. Eq. 599, 1915 N.J. Ch. LEXIS 52

• Court: New Jersey Court of Chancery
• Decided: July 15, 1915
• Status: Published

Opinion

Emery, V. C.

(after statement). In this case I reach these conclusions:

First. The rights of the defendant H. B. Claflin Company in the lands in question at the time of filing the bill were those of attaching creditors only, and under the Attachment act (1 Comp. Stat. p. 137, "Attachment,” §§ 7, 8) only the property and estate of the defendant in attachment on the lands at the issuing of the writ is bound, and the estate of other persons acquired therein previous to the attachment cannot be affected by the attachment. Campion v. Kille (Court of Errors and Appeals, 1863), 15 N. J. Eq. 476, 478. The previous equitable interest of third parties in the lands attached are protected as well as their legal interests. Canda v. Powers (Chancellor Runyon, 1884), 38 N. J. Eq 412, 413. The decree in this case was reversed on another point, but this rule under the Attachment law was not questioned. The judgment in attachment having been obtained after filing the bill and notice of the conveyance to complainant by Mrs. Prival, and complainant’s rights arising thereunder, defendant as judgment creditor is not protected under the recording acts. Canda v. Powers, supra, 418; Lanahan v. Lawton (Vice-Chancellor Pitney, 1892), 50 N. J. Eq. 276, 281.

Second. Specific performance of a written contract on the part of Mrs. Prival to convey based on her execution of the defective deed, as evidencing the written contract, cannot be granted under the statute. P. L. 1892 p. 292, a supplement to the “Married Woman’s” act, Comp. Stat. p. 3231 ¶ 8f:

“Conveyance of real property by married woman in execution of written contract to which husband was party, &c.

“Sec. 1. That hereafter any married woman above the age of twenty-one years may execute and deliver any conveyance of her real estate without her husband joining therein, and such conveyance when duly acknowledged, and such acknowledgment certified according to law, shall be good and effectual to convey the lands, tenements or hereditaments thereby intended to be conveyed; provided, that such deed is given in execution of a written contract made by such married woman, to which the husband was or shall be a party, or to which he has given or shall give his assent in writing, or to the terms, conditions and stipulations of which he in writing has bound or made subject or shall bind and make subject his right, title or interest in said real estate; and provided, further, that such contract shall have been or shall be acknowledged, as in case of a conveyance of land by a married woman, and such assent or other writing signed by such husband shall have been or shall be acknowledged or proved, as in case of a conveyance of land, and such contract and assent, or other writing, shall have been or shall be recorded before or at the time of the recording of any such conveyance.”

This statute by its terms contemplates a prior written contract executed and duly acknowledged by the wife, and the subsequent voluntary execution of a deed in pursuance of the written contract. It validates such subsequent separate deed of the wife. The defective deed cannot itself be taken as the prior written contract intended by the statute, and another deed, based on this as the previous separate contract of the wife, be required to lie executed against her will by a decree for specific performance. And upon the facts proved in this case, it cannot be held that in fact the defective deed as executed was the evidence of the written contract for conveyance or as expressing the terms of the contract. The lands were not conveyed upon the consideration mentioned in this deed, nor do any of the other material parts of the contract, which was one for exchange, appear in this deed. As written'evidence of the contract for sale, it is incomplete and discloses only part of the terms, and for this additional reason cannot be considered as the contract of sale now to be specifically enforced against the will of the wife.

Third. The wife refusing to convey, the equity of the complainant as against her stands as that of a vendee or purchaser on the exchange of properties, who has on her part fulfilled the contract, and by reason thereof and of the wife’s refusal has equities for compensation. This equity is to have the estate of Mrs. Prival in the lands charged with the payment of the purchase-money (Pentz v. Simonson (Chancellor Green, 1861), 13 N. J. Eq. 232, 236; Phelps v. Morrison (Court of Errors and Appeals, 1874), 25 N. J. Eq. 538, 547), or with the value of the property delivered as consideration (Pierson v. Lum (Vice-Chancellor Green, 1874), 25 N. J. Eq. 390); and also with other moneys equitably due, by reason of complainant’s execution of the contract on her part and taking possession of the land. This aspect of the case was not presented at the hearing, and on the nature and the extent of these charges, I will hear counsel. The interest of Mrs. Prival in the lands will be sold to pay any charges directed, which will be prior to the attaching creditors’ lien, and if sale is directed, I will hear counsel as to selling any interest the husband may have in the lands, or directing conveyance thereof by him to the purchaser.