McGee v. Smith

16 N.J. Eq. 462

• Court: New Jersey Court of Chancery
• Decided: October 15, 1863
• Status: Published

Opinion

The Chancellor.

The controversy depends entirely upon the title which Smith acquired by his purchase at the sheriff’s sale, under the decree of foreclosure. That right, whatever it may he, is paramount to any title which the complainant could acquire under the will of her husband. The complainant, by her bill, alleges that the decree of foreclosure directed that lot number two hundred and eighteen, being the lot devised to Hugh McGee, the son of the testator, should be first sold, and that Smith became the purchaser of that lot. This fact is denied by the answer. It appears that the decree in the foreclosure suit makes no mention of the numbers two hundred and eighteen or two hundred and twenty, which are the city numbers used to designate the houses on the avenue, but describes the lots as “ numbers twelve and thirteen, on block sixty-three, as they are known and designated on Van Vorst’s map.” Those lots are described in the mortgage and in the bill to foreclose, as being each twenty-five feet in width. The sale and conveyance by the sheriff to Smith, was made in accordance with the original division and description of the lots on the Van Vorst map, and not in pursuance of any subsequent arrangement of the lots made by McGee, and recognized in his will. In the original division of the lots on the Van Vorst map, and in the mortgage from McGee to Van Vorst, under which the foreclosure and sale was made, lot number thirteen, which was sold to Smith, is described as being twenty-five feet in width. That is the description of the lot in the bill to foreclose, and in the writ of fieri faeias, by virtue of which the sale was made. Whether the width of the lot is stated in the decree or not, is immaterial. It is usual to designate the premises in the decree by reference to the bill, not by precise description. Catharine McGee, the complainant, was a party to the foreclosure suit, and is bound by it. While that decree, and the sale and conveyance under it, remain in force, she cannot contest the title of the purchaser.

Catharine McGee was not only a party to the foreclosure suit, and bound by the decree, but she filed an answer, claiming to have her life estate in the lot devised to her by her husband, recognized and protected. By her answer she avers that the house and lot devised to her as lot number two hundred and twenty, on Railroad avenue, is the same house and lot described in the Van Vorst mortgage as lot number twelve, and that the house and lot devised to Hugh McGee, as lot number two hundred and eighteen, on Railroad avenue, is the same house and lot mentioned and described in the Van Vorst mortgage as lot number thirteen. She now asks relief upon the ground that the answer is erroneous in stating that those lots are identical, and that, in fact, the lot devised to her is larger than lot number twelve, and that the lot conveyed to Smith is less than lot number thirteen. Whether the lots are, in fact, identical, is a disputed fact in this case. But admitting that they are different, and that the allegation in the answer, of their identity, is a mistake, Catharine McGee cannot, in equity, be relieved against the title of Smith, on the ground of that mistake. She is estopped from denying the truth of her answer. If there were no other ground of defence, Smith would be presumed, as against the claim of Catharine McGee, to have purchased upon the faith of her answer, and in reliance upon the truth of its statements. She cannot gainsay her own statements to the prejudice of his title.

The injunction cannot be continued for the mere purpose of restraining a naked trespass, nor for .the purpose of quieting the possession of the complainant, where she shows no right to the premises in dispute. 2 Eden on Inj. 390.

The filing of exceptions to the answer constitutes no objection to the dissolution of the injunction, if the equity of the bill upon which the injunction rests has been fully answered. 1 Barb. Ch. Pr. 642; Livingston v. Livingston, 4 Paige 111; Robert v. Hodges, ante, p. 299.

The exceptions, so far as they relate to the points of the case upon which the injunction rests, are formal, rather than substantial. It is obvious that the case made by the bill, is not in accordance with the truth and facts as they really exist, and that all the complainant’s equity is fully denied by the answer.

The injunction must be dissolved.