Content v. Cavangah , 117 N.J. Eq. 398 ( 1935 )

We have carefully examined the proofs and find that they fully support the result reached by the learned vice-chancellor.

We choose, however, to rest our affirmance of that result on the agreement, in writing, between the parties thereto for the sale and purchase of the premises in question. Notwithstanding the provision of that agreement that the lands therein described were to be conveyed "free from all encumbrance," nevertheless that agreement also contained the following provision:

"It is hereby agreed by and between the parties hereto that in case any sewer or street improvements are made, upon which the property herein is located up to the time of the delivery of the deed, but not assessed, such assessment shall be borne by the party of the second part, her heirs, executors, administrators and assigns."

We see no point to the insertion of the aforesaid provision unless it be, as we consider it clearly to be, that the premises were, as stated, sold and purchased subject to a sewer improvement. Moreover, an improvement of such a character, under the facts and circumstances of the instant case, necessarily constituted a known and accepted encumbrance or easement, to the extent that the sewer line passed through a portion of the premises in question.

Affirmed.

For affirmance — THE CHIEF-JUSTICE, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, JJ. 13.

For reversal — None.