The agreement for the sale of the property in this case stipulated that the title be a complete record title not based upon the sale of the premises for taxes and municipal liens. Since appellant-vendor's title was a tax title, respondent-vendee had a right to rescind the contract upon learning of this fact.
PER CURIAM.
The decree appealed from will be affirmed, for the reasons stated in the opinion filed in the court below by Vice-Chancellor Backes and reported in 113 N.J. Eq. 340.
We do not find it necessary to adopt the view of the learned vice-chancellor that appellant Carmine Sica was, at the time of the making of the contract for the sale of the apartment house, a stranger to the title, and could not, therefore, invoke the rule laid down in Gerba v. Mitruske, 84 N.J. Eq. 141, that where the time of performance is not of the essence of the contract, performance may be decreed if a clear title can be given at the time of the making of the decree. As to this we express no opinion, nor are we required to. Suffice it to say that the agreement stipulated that the title should be a "complete record title and not based upon a sale of the premises for taxes or other municipal liens, nor upon adverse possession," and that appellant was unable to convey a title that satisfied the requirement of this clause.
Decree affirmed, with costs.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 15.
For reversal — None.