This is a suit for specific performance of a contract to purchase real estate located in Montclair. A motion for summary judgment was recently made by the plaintiffs and, at the close of argument, a decision to deny the motion was announced. Since then -- and before the signing of an order -- there has been a request from plaintiff's counsel that the motion be given further consideration.
One of the plaintiffs is an executor whose decedent, Shirley H. Nichols, joined in a contract shortly before his death to sell premises of which he was a co-owner. The defendant, as purchaser, also joined in the contract and made a payment on account of the purchase price. No deed was delivered before the death of Mr. Nichols, but after his will was probated a conveyance was tendered to the defendant. However, that tender was rejected on the ground the holder of the legal title had not joined in it.
When Mr. Nichols died his legal title passed to his sister Abby A. Nichols under a devise in his will. She is a patient at the Essex County Overbrook Hospital, an institution for the treatment and care of persons suffering from mental illnesses. She is not a party to this suit.
The defendant Jorgensen opposes the plaintiffs' motion for judgment on essentially the same ground as that on which he rejected the tender of a deed. He contends the devisee must be a party to the action because, if she is not, a judgment for specific performance cannot divest her legal title and give him the marketable title which he has a right to insist upon. He has made a countermotion for an order that Abby A. Nichols be joined as a party.
The plaintiffs rely on the equitable conversion of realty into personalty effected by the contract of sale. Courtney v. Hanson ,
3 N.J. 571 (1950). Beyond that they stress N.J.S. 3A:22-4 and 5 and on this application for reconsideration point especially to N.J.S. 3A:22-6. Section 4 of chapter 22 provides that where an owner has contracted to sell land and then dies before closing title the Superior or County Court "may direct" his personal representative to carry out the contract. Section 5 declares that a deed made under section 4 shall convey title "as fully as if the decedent had executed the same in his lifetime." Neither section contains any language from which it can be determined who are the necessary parties to such a proceeding.
Presumably a proceeding under section 4 involving any question about the existence or validity of a contract would call for the presence before the court of the heir or devisee holding the legal title.
The pertinent parts of N.J.S. 3A:22-6 read:
"Any executor under any will * * * may carry into effect the terms and conditions of any agreement for the purchase or sale of any real estate entered into by the decedent. And any subsequent agreement entered into by any such fiduciary in relation thereto shall be binding and effectual on all parties as if made by the decedent.
The fiduciary may take title to the real estate, at such times and upon such terms and conditions as he shall deem for the best interest of the estate, although by the provisions of said will there is given no power to the executor to take title to real estate.
The real estate shall be assets of the estate in the hands of the fiduciary, and may be sold and conveyed by him, without any order of court, and he shall receive, be accountable for and pay over the proceeds of such ...