Eastwood, Goldmann and Schettino. The opinion of the court was delivered by Eastwood, S.j.a.d.
The question raised by this appeal is whether the court erred in granting summary judgment in favor of the defendant-purchaser, dismissing plaintiffs' complaint for specific performance of an agreement for the sale of land and directing return of deposit and allowing incidental items of expense on defendant's counterclaim. A prior motion of plaintiffs for summary judgment was denied.
The judgment of dismissal was entered pursuant to the Chancery Judge's determination as expressed in the following letter opinion:
"This matter is now before me on a motion for summary judgment for the defendant. The facts are not in dispute.
The plaintiff made time of the essence of the contract. At the time fixed in the notice there existed an encroachment and the defendant
rejected the title. Defendant's motion for summary judgment must prevail. Wyatt v. Bergen , 98 N.J. Eq. 502 (Ch. 1925), affirmed 98 N.J. Eq. 738 (E. & A. 1925)."
The agreement between the parties was for the sale of property located in the Borough of Fair Lawn, on which a 12-room residence was erected, for the sum of $18,000. The contract required the plaintiffs to convey title by warranty deed, free from all encumbrances and encroachments. As the result of defendant's search of the title and survey of the property, he discovered that a 1,000-gallon fuel tank, constituting a part of the heating apparatus of the premises, was not located within the boundary lines of the premises to be conveyed. It was on an adjoining piece of ground owned by the plaintiffs.
It is conceded that the fuel lines of the tank ran underground from the adjacent property on which the 1,000-gallon tank is located, across the property line, into the foundation walls of the building and were connected with a valve to the heating unit in the building. In defendant's affidavit, he stated that on several occasions he had demanded that the plaintiffs move the 1,000-gallon tank so as to put it within the property lines, and although the plaintiffs agreed to do so, it was never done.
On October 10, 1953 the plaintiffs made time of the essence of the contract and fixed October 26, 1953 as the closing date. The defendant rejected the title because of the encroachment of the 1,000-gallon fuel tank and the underground fuel lines.
Thereupon, the plaintiffs instituted this action for specific performance and the defendant answered and counterclaimed seeking the return of his deposit, and incidental items of expense in connection with its search of the title, survey fees and reasonable attorney's fees.
Plaintiffs' affidavit stated that on April 22, 1954 they had removed the encroachment by disconnecting the valve from the 1,000-gallon tank and by taking out the fuel lines from the foundation of the house to the burner. However, the ...