Decided: January 31, 1944.
ELIZABETH MATYE AND PAUL MATYE, PLAINTIFFS-APPELLANTS,
JOSEPH NEMECZ AND ANNA NEMECZ, DEFENDANTS-RESPONDENTS
On appeal from the District Court of the Second Judicial District of the County of Monmouth.
For the plaintiffs-appellants, Leo S. Lowenkopf.
Before Justices Case, Donges and Porter.
[131 NJL Page 173]
The defendants conveyed to the plaintiffs by bargain and sale deed, dated October 13th, 1941, premises in the Township of Woodbridge. The deed contained a covenant that
[131 NJL Page 174]
they, the grantors, had "not made, done, committed, executed or suffered any act or acts, thing or things whatsoever whereby or by means whereof the above-mentioned and described premises, or any part or parcel thereof, now are, or at any time hereafter shall or may be impeached, charged or encumbered, in any manner or way whatsoever." Finding that there were unpaid taxes and water charges due the municipality on the premises at the date of the conveyance in the sum of $309.53, this suit was brought to recover the amount of these encumbrances against the defendants on the said covenant. The plaintiffs submitted proof of this allegation to which apparently there was no dispute. Oral testimony was offered by the defendants to explain the circumstances surrounding the execution and delivery of the deed. This testimony was objected to by the plaintiffs and properly sustained by the trial court. No other testimony was offered by the defendants. The court reserved decision until the receipt of briefs from counsel and later rendered decision in favor of the defendants and against the plaintiffs of no cause for action. From the judgment accordingly entered plaintiffs appeal.
We think the plaintiffs established by the proofs a clear breach of the covenant in the deed. The premises were encumbered when the deed was given, and the plaintiffs were entitled to judgment for the amount thereof with interest. The judgment will be reversed, with costs.