Hopper v. Lutkins , 3 N.J. Eq. 149 ( 1842 )

The CiianceiJjOR.

I am well satisfied the injunction in this case should be dissolved. The only equity in the bill, is the charge of mistake in drawing the covenants of the deed, and that is explicitly and fully denied by the answer. The other grounds upon which relief is sought, cannot, from the view I take of the case, be sustained. The facts as they appear from the pleadings are, that the complainant, in eighteen hundred and thirty-five, purchased a farm in Bergen county of the defendant, with a mill seat and water privileges. The deed contains the usual covenants of seizin, of warrantee, and against incumbrances. Tho complainant insists, that he purchased with the understanding that the dam stood at its proper height, and that the covenants were intended in express terms to secure to him that right. At the time of the conveyance, a suit was pending in the common pleas of Bergen, by Stephen Berdan against the defendant, for overflowing his lands by reason of the dam being higher than it should be, and in which action there was a recovery subsequently had, in favor of the plaintiff. The lam was at the same height when the injury complained of in this suit took place, as when the sale was made by the defendant ,o the complainant. Berdan having succeeded in his action, low threatens a further prosecution against the complainant for not reducing his dam to the height, as settled by the verdict in his suit against the defendant. The bill also charges, that John E. Post, another owner adjoining this mill seat, has commenced a suit in the circuit court of Bergen against the complainant, for overflowing his lands by the height of the-same dam, and that such suit is still pending, undetermined. The dam has remained at the same height as when complainant purchased. In part payment for this farm, the complainant gave the defendant his promisory note, now past due, for twelve hundred and fifty dollars. There is remaining unpaid on that note one thousand dollars, besides interest. To recover this money, the defendant commenced an action at law against the complainant, and he was enjoined from further proceeding-thereon, until the alleged mistake in the deed could be corrected and he should fulfil his covenants and agreements with the complainant, or until further order.

This bill, then, has two objects; to reform the deed made by the defendant, and to injoin him from proceeding to collect the note of twelve hundred and fifty dollars.

Upon the first ground, the complainant will be at liberty, if he thinks proper, to proceed and take the proofs in this case; but as the defendant denies that any mistake was made, we are to see what propriety exists in the remaining part of the case for continuing the injunction.

I deem it no part of my province, on this motion, to settle-how far the covenants actually go; whether they have any reference to the height of the dam or not. That will be determined when the question shall arise before the proper tribunal.

If the complainant has taken a deed without any covenants, for his protection, in the flow of this water, then he is without remedy for his damages, either at law or in this court. If, however, it was designed by the parties that the deed should contain covenants, and they have by mistake been omitted by the scrivener in drawing it, that mistake will be corrected and the deed reformed accordingly.

But suppose the deed to contain full covenants, as contended for by the complainant, (and that is giving him the advantage of his whole case,) what relief can this court afford him against the payment of his note 3 The object is, undoubtedly, to set off the complainant’s damages, sustained under the covenants in his deed, against the note which he gave as part of the purchase money for the property. Can this be done 3

As yet, it must be remembered, the complainant has sustained no actual damages. A suit is instituted against him, and another is threatened, but no recovery has been had. There is no mortgage on which the party is seeking the aid of the court for a foreclosure and sale of the premises, but a note on which the defendant is pursuing his legal remedy to recover his money. If this injunction against the collection of this note is continued, how long is it to be continued 3 Only until the suit now pending for damages against the complainant, by John R. Post, is determined 3 This would not ascertain the amount of the complainant’s damages; for Post may repeat his action, and it seems that Berdan and perhaps others intend to bring suits also against him. To carry out the relief sought, it must continue until all the damages which the complainant can be put to, (and which the covenants are designed to protect him against,) are ascertained and settled. This would be a very uncertain period, and proves to my mind that a rule of this kind would be productive of great injustice. Whether these suits will ever be brought, or if brought will be repeated, its all beyond the power of this court to know, as the action of the parties is beyond its power to control.

IIow can this court, from the very course of its proceedings, ascertain in any satisfactory manner, the damages sustained by the flow of this water 3 Even at law it is often difficult to come to a result. I have been furnished with no case that goes the length here desired.

The complainant’s counsel has referred me to the case of Johnson and others v. Gere, 2 John. Chan. R. 546; but that is by no means like the present. There the title to a part of the property sold was defective, and an ejectment was commenced for the recovery of the possession. The chancellor injoined the suit at law on the bond for the purchase money, and also proceedings on the mortgage, until the ejectment should be determined. This is widely different from settling damages arising from the overflow of lands. If a mortgagor is deprived by a trial at law of the half or other share of the land which he purchased, a computation may be made by a master of the value of that share, and it can be deducted from the amount of the mortgage; but how he would ascertain and adjust all the damages which this complainant may sustain by maintaining the dam in question at its present height, is more than I am able to discover. It would be impracticable, in my view of the case, to do so with any certainty. It is true that the same principle pervades both cases, that of preventing circuity of actions, and allowing a set off of damages under covenants against the purchase money. The difference is, that in the one case it is practicable to do so, and in the other it is not.

In the recent case in this court of ^* Coster v. Monroe Manufacturing Co., I went upon the force of authority so far, after a judgment had been obtained in ejectment against the mortgagor for a part of the premises, for which he gave the mortgage, and after a re-purchase made by him of that part from the plaintiff in ejectment, to refuse a decree for sale on the mortgage, until the damages the defendant had sustained under his covenants, were ascertained by a master and credited on the mortgage. I still think that view of the case correct and attainable, but I do not see how it can be pressed further, so as to reach every possible case of damages arising under covenants.

In Bumpus v. Platner, 1 John. Chan. R. 217, and Abbott v. Allen, 2 John. Chan. R. 521, the doctrine goes no further, than that a court of equity will relieve a purchaser against the payment of the purchase money, upon a failure of consideration, after an eviction at law.

It would be a sufficient answer to the complainant in this case, to say, that he has sustained no damages, no recovery having been obtained against him. But even if one judgment had been Obtained against him, it would not settle the damages on the covenant, for the same party might repeat Ms action, or other landholders commence other suits; and I therefore see no proper or correct course in a case like the present, but to leave the complainant to Ms remedy at law on his covenants, and to allow the defendant to proceed with Ms suit without the interference of this court.

Injunction dissolved.

* Ante, vol. i. page 467.