Serventi v. Cella , 104 N.J.L. 351 ( 1927 )

This case comes before us on a reargument had on a petition to that end, based upon the ground that the court in its decision overlooked the second point made in the brief of plaintiff-respondent in this court, namely, that the defendants-appellants, vendors, presented to the plaintiff-respondent, vendee, at the time of the closing of title a deed which was improper and not in accordance with the contract for the sale of the real estate.

An examination of the opinion filed in the case discloses that the court did not deal with that question, though the point had been made in the respondent's brief, as follows: "The contract of sale between the plaintiff and defendants provided as follows: ``The deed shall be in proper statutory short form for record, shall contain the usual full covenants and warranty, and shall be duly executed and acknowledged by the seller, at the seller's expense, so as to convey to the purchaser the fee-simple of the said premises, free of all encumbrances except as herein stated.'"

The deed tendered by the appellants to the plaintiff contained this clause: "Subject, however, to the terms of a certain agreement made between Michael Uhring and Louis Elleau, dated May 22d 1878, and recorded in the Hudson county registrar's office in book 322 of deeds, page 690."

The grounds of refusal to accept the deed were, first, that it contained the "subject clause" above quoted, and secondly, that the agreement referred to was in fact an encumbrance and made the title unmarketable. The reargument was had on the ground that the court had omitted to deal with the "subject clause" in the deed as above quoted, and not upon the ground that the court erred in holding that the agreement between Uhring and Elleau was in fact an encumbrance.

While it is true that the prospective vendee was not obliged to take the deed with the "subject clause" contained therein, it is quite clear his refusal to accept the deed was not based upon the "subject clause" alone, but because he also claimed that there were restrictions upon the property which made it unmarketable.

As to the latter contention, we have already decided that there was no proof of any restrictions existing on the property. This being the situation, the only question on the reargument for us to determine is whether the vendee was entitled to reject the conveyance solely upon the ground of the existence of the "subject clause" in the deed, without affording the vendors an opportunity to tender a deed in conformity with the clause of the contract.

The plaintiff's objection obviously went to the form of the deed. To meet that objection all that was necessary for the vendors to do was to delete the objectionable clause from the deed. As time was not of the essence of the contract, the vendors were entitled to a reasonable opportunity to obviate the objection made by the vendee to the form of the deed.

Moreover, as the plaintiff had announced his intention not to accept the deed because of the defect in the title of the defendants to the property, there was no legal obligation cast upon the latter to make a tender. Trenton Railway Co. v. Lawlor,74 N.J. Eq. 828; Kastens v. Ruland, 94 Id. 451.

For the reasons stated the judgment of reversal will not be disturbed.