Goldmann, Freund and Foley. The opinion of the court was delivered by Freund, J.A.D.
Plaintiff John J. Stehr, the vendee, appeals from a judgment denying him specific performance of a contract to purchase three tracts of real property in the Township of Byram, N.J., either with or without an abatement in the purchase price. The present action was instituted when defendants-vendors, Alton L. Sawyer and Helen, his wife, were unable to perform their contract since they could not deliver good and marketable title to one of those three tracts.
On August 21, 1911 James Frenche at a tax sale purchased a wood lot containing 73 acres assessed to "William Johnson Heirs" for the term of 28 years. The right of anyone in interest to redeem the property was to expire on August 21, 1939. On August 28, 1911, upon payment of $15.29, the amount of the unpaid taxes, interest, costs, fees, charges and expenses, a tax title certificate was issued to him. It was recorded on February 1, 1915 in the Sussex County Clerk's office.
Frenche died intestate on June 2, 1917, and Susan C. Calkins became seized of the lands as his only heir at law. On February 28, 1945 Alton L. Sawyer contracted with Mrs. Calkins, a widow, to purchase by warranty deed the tract in question and two other tracts. These latter two tracts were composed of approximately 82 and 115 acres, respectively, and were described in the contract and in the subsequent conveyance by metes and bounds descriptions. The third tract was described as follows:
"THIRD PARCEL: All the right, title and interest of the party of the first part in and to a tract of wood land containing seventy three acres, at one time assessed to William Johnson Heirs. Being the same purchased by James Frenche for Taxes and for which said James Frenche obtained a tax title certificate from Frank W.
Spranger, Collector, dated August 28th, 1911 recorded in said Clerk's Office in Book W-4 of Mortgages pages 137 &c."
An examination of the title was made and an abstract was forwarded to Sawyer. That abstract described the third tract in the same language, as did the contract of purchase by Sawyer.
On July 15, 1950 Mrs. Calkins executed a warranty deed to Alton L. Sawyer for the three tracts of land. It was recorded on September 19, 1950. The description of the third parcel in the last-mentioned deed was the same as in the 1945 contract and abstract. The Sawyers moved from Byram in 1951 and have since resided in Virginia. A tenant farmer has been in possession of the land.
The Sawyer property was first brought to the attention of Stehr in 1959 by Mayor Carl Johnson of Byram. Johnson drove him to the property and generally pointed to its boundary lines. They had with them a map or plotting of the area that had been given to Johnson by a Mr. Pruden, but which Johnson said could not be considered as being accurate. Johnson told Stehr that if he wanted to invest in this property he ought to contact the Sawyers to see if they would sell. Stehr agreed it would be a good investment and suitable for recreation purposes.
Plaintiff's direct testimony indicates that on October 22, 1959 he first telephoned Sawyer, who then resided with his wife in Falls Church, Virginia, and told him of his interest in purchasing the three parcels of land. Sawyer stated that he had not given any serious thought to selling the property but agreed to consider the idea. Plaintiff testified that Sawyer told him that the land measured about 220 acres.
On November 2, 1959 Stehr again telephoned Sawyer at Falls Church and offered $13,500 for the land. Sawyer said that he wanted to offer his tenant farmer the first refusal. Stehr claims he told Sawyer that he did not have a clear picture of the boundary lines of the three
parcels. He also claims that Sawyer assured him that he knew the boundaries, had good title to all the lands and there would be no problem in ascertaining all the properties he owned.
A third telephone conversation was had with Sawyer at Falls Church on November 10, 1959. Stehr testified that Sawyer in this telephone conversation accepted his offer of purchase. Plaintiff had by now learned that the land was comprised of three tracts. He was still not sure exactly where the third tract was located and was concerned with defendants' ability to convey good title to it. Sawyer informed him that his attorneys had straightened out all matters of title to his satisfaction when he purchased the land, and assured Stehr that "there was nothing to be concerned of, that there was well over 225 acres." According to plaintiff, the parties then agreed that Stehr would have the contract drafted.
The following day, Armistice Day, was a legal holiday. Nevertheless, plaintiff through his attorney arranged to be admitted to the Sussex County Clerk's office so that they could examine the ...