On appeal from the Salem County Circuit Court.
For the plaintiff-respondent, Robert W. Richman.
For the defendants-appellants, Louis F. DiNicola (Maurice J. Cronin, of counsel).
The opinion of the court was delivered by
PORTER, J. This is an ejectment suit brought in the Salem County Circuit Court. The answer filed by both defendants-appellants was the statutory one of general denial and a second defense that they have equitable defenses which "are reserved." In passing it may be noted that a defense of an equitable nature cannot be heard in an ejectment suit.
On motion supported by affidavits to which answering affidavits were submitted the learned trial court struck the answer and entered judgment for the plaintiff on the ground that no defense cognizable at law was shown.
It is not necessary to consider the merits of the defense on the affidavits filed because we conclude, for reasons to be stated, that the substituted plaintiff had no right of action
and that therefore the striking of the answer and the entry of judgment was error and must be reversed.
It appears that Anna Hooks, who originally brought this suit, was the owner of a farm property located in Salem county which she contracted in writing on October 24th, 1939, to sell to the defendant Connolly for $6,000, the title to pass on January 24th, 1940, which date for final settlement was made the essence of the contract. The sum of $600 was paid on account upon the execution of the contract. It was agreed that possession of the dwelling house be given on or before November 6th, 1939, and possession of the grounds and other buildings upon the execution of the contract. Possession was given on or about those dates and continued in the defendants. Connolly, it appears, acted for the defendant Triton Chemical Corporation of which he is president. In addition to the $600 paid on account of the purchase price additional sums were later paid at various times amounting to $945.77. Title did not pass to defendants or either of them on January 24th as provided in the contract nor at any other time. The defendants say that by parol agreement the date of closing was indefinitely postponed and that on March 13th, 1940, a tender was made of the balance of the purchase price to Anna Hooks and refused.
The contract in question was recorded in the county clerk's office on February 23d, 1940.
It further appears that on February 20th, 1940, Anna Hooks entered into a written agreement with Verna E. Lewis, of Allentown, Pennsylvania, for the sale of the same property for $5,000. That Anna Hooks executed a deed for the property to Verna E. Lewis under date of March 13th, 1940, which deed was held by counsel in escrow until March 19th, 1940, when it was duly recorded in the county clerk's office.
The instant suit was instituted on March 13th, 1940, the same day the deed to Verna E. Lewis was executed and also the same day the defendants claim to have tendered to Anna Hooks the balance of the purchase price under their contract. Anna Hooks ...