
    MARCELI SLOMKOWSKI AND STANISLAWA SLOMKOWSKI, HIS WIFE, RESPONDENTS, v. SAMUEL LEVITAS AND FANNIE LEVITAS, HIS WIFE, APPELLANTS.
    Submitted January 30, 1931
    Decided August 1, 1931.
    
      Before G-ummeee, Chibe Justice, and Justices Trexchard and Lloyd.
    Eor the appellants, Corn & Silverman.
    
    Eor the respondents, Haines £ Chanalis.
    
   Pee Cueiam.

The appeal in this case is by the defendants from a summary judgment entered against them in the Essex Circuit Court upon the defendants’ answers being stricken out. The action was to recover a deposit made by the plaintiffs upon an agreement for the purchase of a piece of real estate, together with search fees incurred in examination of the title.

The complaint set up that the contract of sale was to convey by deed of warranty free from encumbrances except as therein mentioned, and that the buildings were wholly within the described premises; that on the contrary there was a defect in the title by reason of an insufficient power given to an executor and trustee in a will under which title was derived; that there was an encroachment of the building line of the public highway of three and one-half feet. It further alleged that the plaintiffs demanded the rescission of the contract and the repayment of the moneys due them.

To this complaint an answer was filed alleging that the defendants had tendered a good title and were always ready and willing to convey such a title, but that the plaintiffs were not ready to perform their part of the contract; further, that the only reason for refusal to accept title as given by the plaintiffs was the alleged defect in title. Affidavits were taken on a motion to strike out the answer, those of the plaintiffs exhibiting a survey of the premises showing the encroachment, and a will under which title was derived which it was alleged failed to confer a power of sale on the trustee; the defendants’ affidavits were directed to showing that the encroachment was waived, that the only trouble with the title was in the power in the will, and that this was not substantial.

The affidavits do not substaniate the defendants’ claim of waiver. The affidavit relied on is that of one Chanalis, a member of the bar, who annexes to his affidavit testimony of one Silverman as given in a former proceeding in the Court of Chancery and who there testified as to a conversation between the plaintiff Marceli Slomkowski and himself, in which they talked about the difficulty in the title. Assuming that this was evidential for the court’s consideration, and that it was binding on Marceli’s wife, also party to the agreement, it did not constitute a waiver of the encroachment. While Marceli only mentioned the defective title and said he did not know of any other trouble, this was far from a waiver. The matter was in the hands of his attorney, and it is quite apparent that he was mentioning only the things his lawyers had so far mentioned.

We think also it is more than doubtful if a power of sale was conferred on the husband of the testator in the will mentioned. A naked trusteeship is given for the testator’s children and grandchildren to be administered by him. No power of sale is expressly given nor do we think one was conferred by implication.

The answer was properly stricken out and the judgment is affirmed, with costs.  