lessee's rights so long as the lessee is in open possession of the property, Burleigh, 108 A. at 85. Were the law otherwise, a purchaser could defeat the lessee's prior rights simply by preserving his ignorance of their existence. Here, not only was Shell in open possession; the deed to the property explicitly subjected the transfer of title to Shell's rights under the lease. Given these facts, Herb C.'s protests of ignorance are unavailing. Ordering specific performance against Herb C. does nothing more than enforce the agreement into which it voluntarily entered. The problem of compulsion discussed in Guaclides thus has no relevance to the facts of this case.
The Application of the Right of First Refusal to this Transaction
Both T&TR and Herb C. raise as a second defense the assertion that Shell's right of first refusal does not apply to this transaction. Shell's contract requires a "bona fide offer" to sell the leasehold to trigger its right of first refusal. Here, defendants assert, no "bona fide offer" was made.
Shell's leasehold is one of four contiguous lots, each owned by a separate legal entity. The four entities -- three closely held corporations and one partnership -- are owned by five individuals, members of two families. The ownership interest of each individual differs from entity to entity, and some of the individuals have no interest in one or more entity. Herb C. claims that it intended to buy the entire contiguous area from all four owners, and that it had no intention of buying the T&TR property alone. Thus, it asserts, it was not a "bona fide" buyer of the T&TR property.
T&TR joins Herb C. in the assertion that the deal was for all four lots. It asserts that the four sellers negotiated jointly for the sale of the property and that an allocation of the selling price among the four lots was made without regard to the real value of the property. The motive for the allocations, says T&TR, was to apportion the proceeds of the sale among the five individuals who are the owners of the four sellers, in accordance with an agreement among themselves. Thus the sum of $198,250, as represented on the deed, was not the price it was sold for at all. In actuality, says T&TR, some portion of the price allocated to the other three lots was paid in consideration for the T&TR lot. Thus there was a bona fide offer to sell all four lots, but no bona fide offer to sell the T&TR lot was ever made.
The inescapable implications of this argument are that Emily and Eunice Buchmuller perjured themselves when they signed the deed transferring title to Herb C. Enterprises; that Eunice Buchmuller further perjured herself when she signed the acknowledgment to the deed; that T&TR knowingly underpaid the New Jersey transfer fee, which is based on the sworn statement of consideration, N.J.S.A. 46:15-7; and that the principals of T&TR underreported their incomes for federal income tax purposes, and filed returns with the Internal Revenue Service reflecting the false swearings of the deed and its acknowledgment.
I reject the argument. T&TR may not repudiate the sworn statements it has made on the deed and its acknowledgment. Tabloid Lithographers, Inc. v. Israel, 87 N.J. Super. 358, 365-66, 209 A.2d 364 (Union Cty, Court, Law Div., 1965) (explaining the doctrine of estoppel by instrument), see Suburban Golf Club of Elizabeth v. State Highway Comm'r., 92 N.J. Super. 125, 137, 222 A.2d 301 (Law Div. 1966) ("the grantor, and all those in privity with him, shall be estopped" from denying prior ownership of property as set forth in an instrument purporting to convey the property.) This was a real, arms-length transaction, in which title was conveyed at an agreed-upon and recorded price. Shell's right of first refusal was unquestionably triggered by these events.
Shell's right of recovery runs first against T&TR. T&TR is no longer in a position to make good on Shell's claim; but that does not extinguish the right. It runs next against Herb C., which is in privity with T&TR in regard to the sale of the property, Burleigh, 108 A. at 85. Herb C. was not a party to the contract, nor is it a third-party beneficiary. It has no right to raise a contractual defense not available to the contracting party. Thus its assertion that it never intended to make or accept a bona fide offer for the T&TR property alone is of absolutely no moment. The offer was bona fide from the standpoint of T&TR; a conclusion on that issue puts an end to our inquiry.
Summary judgment will be awarded to Shell, and an order directing Herb C. Enterprises to offer to convey to Shell for a price of $198,250 the property it purchased from Trailer and Truck Repair Co., Inc. will issue. As there is no just reason for delay, I will direct the entry of this order as a final judgment, Fed. R. Civ. P. 54(b).
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