1. Upon an executory agreement for the sale of lands, the purchaser becomes the equitable owner of the lands and he holds the purchase money in trust for the vendor.
2. If land, while the subject of a contract of sale, is taken in condemnation, so much of the award as will satisfy the purchase money belongs to the vendor and the balance to the purchaser. Conversely, the purchaser has no interest in the award when, because of his breach of the contract or his laches, equity has ceased to regard him as the owner of the lands — when the vendor no longer ought to convey.
3. Under our Eminent Domain Act, title to land, as between the owner and parties other than the condemnor, remains in the owner and does not vest in the condemnor until tender of the award or payment thereof into court and notice of such payment is given. R.S. 20:1-15.
4. In the present case, petitioner was competent to pass title to the respondent on the day the award in condemnation was paid into court. The interest of the parties in the fund in court must be governed by their rights in the land as of that day.
5. A party seeking specific performance of a contract must show that he has performed, or been willing to perform, all the essential terms of his contract. The time specified in the contract is not usually considered an essential term, but even so, gross laches are a bar.
6. Where the time fixed in a contract is regarded as a formality only, that time may nevertheless be made an essential element by formal notice. The time fixed must be reasonable under the circumstances. In this case the day set by the petitioner for closing was only six days after the giving of notice. This was, perhaps, too short a time, but petitioner extended and re-extended the time at respondent's request, to more than a month after the original demand. Held, time remained essential; more time respondent could not and did not ask.
7. Respondent's failure or unwillingness to perform on the day finally set by petitioner for closing constituted a material breach of the contract and divested respondent of any equitable estate in the land. The situation was no longer such that petitioner was under an obligation to convey. The fund in court belongs to the petitioner.
8. It was fairly within the legislative expression that the proceeding to distribute the fund paid into court ( R.S. 20:1-15) might be instituted by petition under the general coverage of the proceeding by which the deposit was effected. Even so, appellant would have been entitled to have its issue tried out if it had presented one. There was, however, no factual controversy to litigate. Lazarus v. Home Building and Loan Association, 133 N.J. Eq. 367, distinguished.
PER CURIAM.
The facts appear sufficiently in the Chancery opinion. The points presented here by the appellant are that Chancery should not have adjudicated the issues summarily, and that even on that method of hearing the appellant should have prevailed. Our consideration of the case leads us to the conclusion that the Vice-Chancellor was correct in his appraisal of the facts and in the application of the law to the meritorious issue. We affirm for the reasons stated by him. The petition by the Reliable Improvement Company was filed in, and was entitled in, an existing cause, namely, "In the Matter of the Application of the State Highway Commissioner of the State of New Jersey for the payment of certain moneys into the Court of Chancery for the taking for public use of lands of Reliable Improvement Company, a corporation of New Jersey." The reply affidavit and exhibits were so entitled. So was the opinion and the order of distribution. Likewise, the notice of appeal to this court and a stipulation here between counsel. There seems to have been a complete recognition, and acceptance, of the proceedings to get distribution as an incident to the existing statutory proceeding, R.S. 27:7-22; R.S. 20:1-15, whereby the funds had been deposited in Chancery. The statute, R.S. 20:1-15, directs that the money, when paid into Chancery by order of the Chancellor, shall there be distributed according to law on the "application" of any person interested therein. Appellant does not take its stand against the procedure by petition. What it complains of is that the matter was decided without plenary hearing, and its difficulty in that respect is that it presented no grounded dispute upon which an issue could be framed for factual controversy. Its own letters and indeed its own exhibits serve only to emphasize that, with knowledge of the purposes and impending acts of the Highway Commissioner with regard to the lands, it had parried with evasions and excuses, none of which assumed the knowledge just stated, the efforts of the vendor to close title; efforts that included the making of time an essential element, Orange Society v. Konski, 94 N.J. Eq. 632; 95 N.J. Eq. 254, cited in the opinion below. The law was correctly applied to the facts, and the controlling facts were not controverted either by proof or contention.
It was, we think, fairly within the legislative expression that the proceeding to distribute might be instituted by petition under the general coverage of the proceeding by which the deposit was effected. Even so, appellant would have been entitled to have its issue tried out if it had presented one. But there seems to have been no factual controversy to litigate. The case is sharply distinguishable from Lazarus v. Home Building and Loan Association, 133 N.J. Eq. 367. Where there is no factual controversy, long established practice in such cases runs against appellant's contention.
The order under appeal will be affirmed.
For affirmance — PARKER, CASE, BODINE, PORTER, COLIE, DEAR, WELLS, HAGUE, JJ. 8.
For reversal — THE CHIEF-JUSTICE, DONGES, HEHER, PERSKIE, RAFFERTY, JJ. 5.
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