Ocean City Ass'n v. Cresswell

65 A. 454, 71 N.J. Eq. 292, 1 Buchanan 292, 1906 N.J. LEXIS 181

Opinion

Per Curiam.

We concur in the views of the vice-chancellor, expressed in the opinion delivered by him in the cause. The decree advised by him, however, needs modification. Its mandate is that the defendant Martha Ann Gandy execute and deliver to the defendants Cresswell and Higgons, and the complainant, the Ocean City Association, a good and sufficient conveyance, of the property in dispute, conveying to each of them an equal undivided one-third part thereof, with the usual covenants against encumbrances, and that she also deliver to them, at the same time, the possession of the said premises; and that, thereupon, Cress-well and Higgons each pay to the complainant their contributive share of the purchase-money advanced by it to Mrs. Gandy, with interest. The decree fails to take into account the fact, disclosed by the admission of counsel for the complainant, made to the vice-chancellor during the trial of the cause, that a conveyance of the property was made to the complainant by Mrs. Gandy pendente lite. The effect of this conveyance was to pass the title out of Mrs. Gandy and vest it in the complainant— one-third for its own benefit and two-thirds in trust for the defendants Cresswell and Higgons. The decree, therefore, should have adjudged that the complainant held an undivided one-third of the premises in trust for Cresswell and an undivided one-tliird in trust for the defendant Higgons, and directed the complainant to execute its trust by making a proper conveyance of an undivided third part of the premises to each of them upon tender by them to it of the monej'S tire payment of which they are required to make by the decree. The time within which the tender should be made should also be fixed by the decree.

It does not appear, from tire admission of counsel above referred to, whether or not the deed made by Mrs. Gandy to the complainant was, in its form, such a conveyance as the parties to the original agreement were entitled to receive from her. If it is less comprehensive in its grant and in its covenants than they had a right to require from her, then the decree should also adjudge that Mrs. Gaudy execute a further convejTince to' the Ocean City Association, Cresswell and Higgons, in such form as to completely execute her original agreement.

There must be .a formal reversal of the decree in order that it may be corrected by the court of chancery in the respect indicated. But as the error has crept in through the failure of counsel to> remind the vice-chancellor of the fact of the conveyance pendente lite, which had evidently escaped his memory, and as the respondents have succeeded in this court upon the merits of its controversy, they are entitled to costs, notwithstanding the formal reversal for correction.

For affirmance—None. For reversal—The Ot-iiee-Justice, Garrison, Fort, GarRETSON, IÍENURTCICSON, PITNEY, SwAYZE, ReÉD, BoGERT, VrE-DENBURGH, VrOOM, GREEN, GRAY, DlLR—14.