
    GEORGE WASHER AND DANIEL WASHER v. JAMES BROWN.
    1. A, who was keeping a tavern and occupying a house and lands on one side of the road, and a small strip on the other side, on which were a well and stables used by him for the purposes of the tavern, agreed to sell the premises to B, knowing that B desired to purchase them for the purpose of keeping a tavern there, and represented to B that his title covered the strip on which were the well and stables. A did not own the strip. Under this representation B entered into articles of agreement for the purchase. An injunction was granted staying the further prosecution of an action at law, brought by A against B, for not complying with the articles, though the deed to A, which was referred to in the articles as containing a description of the premises, was on the table when the articles were drawn, in the presence of B; the bill alleging that B, confiding in the representations of A, did not examine the deed.
    2. But on the coming in of the answer, positively denying the allegations on which the complainant’s equity rested, the injunction was dissolved.
    3. It was said by the Chancellor, that a purchaser for full value is entitled to have an encumbrance removed, by the application to that purpose of a sufficient portion of the purchase money.
    The bill iu this case, filed April 19 th, 1845, states that about December 26th, 1843, the complainant, Daniel Washer, being desirous to purchase a house and lot suitable for keeping a tavern, and the complainant, George Washer, the father of said Daniel, being willing to assist the said Daniel therein, the complainants opened a negotiation with James Brown, the defendant, for the purchase of a lot of land of about six acres, with a dwelling-house and other improvements thereon, then occupied by him as a tavern. That on that day the defendant, at the request of the complainants, who were strangers in that vicinity, pointed out and described to them the premises, and represented them as consisting of about six acres, situated on both sides of the turnpike road leading from Paterson to Hamburgh, on the northerly side of which road was the tavern-house and the principal part of the land; and on the southerly side a narrow strip of land, about two chains long and thirty feet wide, not. enclosed by any fence, on which was a well of water and a shed or barn about forty feet long by twenty-four feet wide, with stalls and a mow, used for stabling and for storing hay for the purposes of the tavern. That after viewing the premises so pointed out and described, to them, the complainants concluded they would suit their purposes, and offered to buy the same. That Brown asked 1600 dollars, and complainants offered 1400 dollars, and Brown agreed to take it — 500 dollars to be paid when the deed should be delivered, and the residue in two equal annual payments; the defendant to execute a good and sufficient deed on or before April 1st, 1844. That after the price was agreed upon, the defendant remarked to the complainants that he did not want to take advantage of them; that there was a mortgage on the premises for 1000 dollars, but that the holder of the mortgage was willing it should remain, if the interest was paid, for two or more years, and that there was no other encumbrance on the lot. That the complainants, confiding in the defendant’s representations as to the description of the premises and the encumbrances thereon, consented that articles of sale and purchase should be drawn and executed forthwith, without taking time to examine the record to ascertain the title of the defendant, or the encumbrances on the premises. That articles were accordingly prepared and executed on the said 26th of December, 1843. The articles recite that the defendant had sold, and that the complainants had purchased from him, the tract of land and premises lying in the township of Manchester aforesaid, containing six acres, strict measure, particularly described in a deed from Harriet Merselis to the defendant, dated March 11th, 1841, recorded, &c., subject to a mortgage from the defendant to the said Harriet for 1000 dollars; and then provides that Brown agrees to execute a good and sufficient deed of conveyance for the said tract of land and premises, on or before April 1st, 1844, and to deliver possession of the premises on the 17th of April, 1844, and that the Washers agree to pay Brown for the premises, $1400, as follows : $500 on the delivery of the deed, and the balance of the purchase money in two equal yearly payments thereafter.
    The bill states that the complainants did not examine the deed referred to in the said articles, but that, trusting to the representations of Brown, they supposed the same conveyed all the premises shown to them by Brown. That, therefore, on the same day, the complainants paid on the said articles of agreement, $10. That before the day fixed for the delivery of the deed, the complainants, to their great surprise, ascertained that a part of the premises for which they had bargained, that is to say, the part on which were the well and shed aforesaid, were not embraced in the said article, and that Brown had no title thereto, and that the complainants had been grossly deceived by Brown’s representations in relation to the premises. That the premises, without the said strip of land, being entirely unsuitable for the keeping of a tavern, the purpose for which they were intended to be used, and being worth not more than $1000 for any other purpose, the complainants wrote a letter to Brown, to the effect that they had been grossly deceived in the matter by his false representations, and that the premises were not truly shown and described to them by him, and therefore declining to carry into effect the said agreement — which letter the complainants caused to be delivered to Brown, on or about January 20th, 1844. That on or about February 7th, 1844, Brown, in company with one Samuel Ryerson, came to the house of the complainant George, and tendered to the complainants a writing which he alleged to be a deed of the premises, and demanded the residue of the first payment. That the said deed did not include the land on which were the well and shed. That the complainants had no intimation that Brown was about to come, at that or any other time, for the purpose aforesaid, and had supposed, for reasons above stated, that he had relinquished any intention of seeking a compliance with said agreement, more particularly as the complainants, on that day, for the first, discovered the additional fact that there was another mortgage on the premises for $200, of which the defendant had not informed the complainants. That the complainants again declined to accept a deed for a part of the premises, and, as a reason therefor, repeated to Brown the charge that he had deceived them as aforesaid, and that Brown admitted the truth of the charge, but replied that the well and the shed belonged to the Paterson Turnpike Company, and that the complainants might obtain the right to use the same, and that he would give a warrantee deed for the residue of the premises. That the complainants declined to receive such deed. That on that occasion the complainants, or one of them, told Brown they had sent him a letter informing him of their intention, so that it might not occasion any damage to him, and that Brown admitted he had received the letter, and said it was no damage to him. That the complainants then told Brown that he had informed them there was but one mortgage on the premises, and that they had learned there was one or two others. That Brown replied that was no concern of the complainants, as he was willing to give a warrantee deed. That the complainants, or one of them, then suggested that it would be better to cancel the articles, and that Brown said that the damage to either party had been little or nothing, and that he was willing to do so, but he declined to do it at that time, on the ground that he had left his article at home, but proposed to meet the complainants, on the Friday or Saturday following, at the house of Peter C. Brown, and cancel the articles. That on that day the defendant refused to cancel the articles, saying that he had changed his miud.. That the strip of land on which the well and shed are, is owned by William N. Colfax, and is now held by Peter Quackenbush, under a lease from said Colfax. That the deed from Harriet Merselis to Brown, referred to in the said articles, does not include the said strip of land, and that Brown, therefore, had no title thereto by the said deed. That when the said articles of agreement were executed, there was, besides the mortgage of $1000 therein mentioned, another mortgage on the premises, given by Brown and his wife to Peter Quackenbush, for $200, dated May 1st, 1841, and that the same is still unsatisfied. That the complainants have been informed and believe, and charge the truth to be, that- since the execution of the said articles of agreement, the said $1000 mortgage has been foreclosed, and the equity of redemption in said premises sold, and Brown dispossessed. That Brown is not of sufficient responsibility to answer in damages for a breach of warranty; and that he has removed from Passaic, and now resides in Essex county. That Brown has commenced an action for covenant broken ,in the Supreme Court, against the complainants, and filed his declaration therein for an alleged breach of the said agreement. The bill states that the complainants are informed and believe, and therefore charge, that no part of the principal or interest secured by either of the two mortgages has been paid, and that the principal and interest due thereon when the said agreement was executed, exceeded the sum which, by the said agreement, the complainants were to pay Brown for the premises.
    The bill prays that Brown may be decreed to deliver up the said articles of agreement to be canceled, and to refund to the complainants the money paid by them on the said agreement; and that he may be enjoined from further prosecuting his said action at law.
    An injunction was granted, according to the prayer of the bill in that respect.
    The defendant put in his answer on the 27th May, 1845. The answer denies that he represented, in any way, to the complainants, that he was the owner of the strip on which the well and shed are, but says that he told the complainants, when they were looking at the property, that the said strip did not belong to him. He says further, that before the agreement was reduced to writing, he informed the complainants that there were two mortgages on the premises, one for $1000, which he thought could remain if the interest was paid, and one for $200, which it was agreed between him and the complainants should be paid off at the time of the delivery of the deed. He denies that he concealed, in any way, the existence of the mortgage, but says it was agreed between him and the complainants, that when the deed was delivered, the parties should go together to the holder of the mortgage and pay it off from the amount of the first payment to be made by the complainants to the defendant, and that the said mortgage should be canceled. That after the agreement was made, the defendant proposed Judge Young as a competent person to draw the articles; that the complainants and defendant went together to his house, and the agreement was stated to him in the presence of all the parties, and he was requested to reduce it to writing, and that in order to give him a full description of the property, the deed to the defendant for the property intended to be sold was produced and read and examined, and the defendant thinks the complainants read the description therefrom; that the deed was open on the table before them all, while the agreement was drawn; that Young drew the agreement in the presence of the parties, and read it to them ; that both the complainants looked at, and he thinks examined the said deed. That he did not, in any way, represent to the complainants that the said strip of land belonged to him, or that he had a right to sell it. He denies that the premises were useless for the purpose of keeping a tavern without the said strip, and were worth a third less than the amount agreed to be paid, but says they were worth the $1400 for the purpose of a tavern. He admits that he received from the complainants a letter stating that they should not take the property, but says it was not mailed to him till the first of March, as appears by the post-mark. The answer gives a copy of the letter. It is dated February 22d, 1844. It informs the defendant that the complainants will not take the property; that they had purchased elsewhere; that the defendant’s neighbors had told the complainants that he did not own where the well and shed were; and says that if he does not, he has no one to blame but himself j and that if it is not sold, he has nobody to blame but his own neighbors. The defendant admits he tendered the deed to the complainants, but says the tender was not made on the 7th of February, as stated in the bill, but about the middle of March; and says that when he tondered the deed, Washer, the father, said he had altered his mind and purchased elsewhere, as his son would rather live in Newton ; and he denies that at that time or any other, he admitted that he had sold, or agreed to sell, the said strip, or represented that it was his, but says that at that time, and in the presence of said Ryerson, he denied having made any such representation to the complainants. He denies that the complainants, or either of them, stated that they were ready to comply with the agreement if the deed corresponded with the description given to them ; and denies that he had said that the refusal of the complainants to take the deed had been no damage to him; and denies that he had said it was no concern of the complainants, for that he gave a warrantee deed for the premises, when the complainants spoke of the second mortgage; and says that he stated, at that time, to the complainants, that he had told them of the second mortgage; and denies that he had deceived the complainants in any way, or made any false representation. He says no proposition or agreement was made to cancel the articles, but that it was agreed by the parties, in the presence of Ryerson, that they should meet at a future day, at the place mentioned in the bill, and leave the matters in difference between them to men. He says that on the day agreed upon, he went to the place agreed upon, for the purpose of meeting the complainants, and leaving the matters in difference between them to men, as agreed on, and not for the purpose of canceling the articles of agreement. That neither of the complainants came, but that a person representing himself to be a son of one of the complainants came, and said he came to settle the business. That, the defendant asked him if he was ready to choose men, as they had agreed, and he said his father had told him not to do so. The defendant denies that, on that occasion, he said he had changed his purpose, and was not willing to carry into effect his agreement to cancel the articles, for that no such agreement was made. He admits that the said strip of land is owned by Colfax, and is held by Quackenbnsh under a lease. He admits that the property agreed to be sold by him lias been sold under the $1000 mortgage. He says he is of sufficient responsibility to answer auy damages for breach of warranty, and that he believes himself to be worth $1000 after his debts are paid. He says it is not true that the interest on the two mortgages was all unpaid, and that the amount due on them exceeded the amount to be paid by the complainants for the property, but says there was but about $75, which would become due the next spring, over and above the amount of the principal. He says that it was agreed that the interest on the $1000 mortgage should be paid from the purchase money to the holder of the mortgage j and that he agreed to go with the complainants and see it done, and endeavor to get an extension of time to pay the principal; and that it was agreed that the parties should go together to the holder of the $200 mortgage, and that that should be paid from the purchase money, and canceled. He says he resides in Essex county, where he is carrying on business, having made his arrangements to remove from Passaic county in consequence of the sale he supposed he had made to the complainants.
    On this answer a motion was made to dissolve the injunction.
    
      L. C. Grover, for the motion.
    
      D. Haines, contra.
    
   The Chancellor.

The second mortgage imposed no serious difficulty on the complainants; in reference to that they were purchasers for full value, and would be entitled to have it removed by the application of a part of the purchase money for that purpose. But the answer states that this was in fact the agreement. As to the other part of the case, the allegations on which the equity of the bill rested are sufficiently denied by the answer. The injunction will be dissolved.

Order accordingly.  