Taylor v. New Jersey Title Guarantee & Trust Co.

The opinion of the court was delivered by ' Garrison, J. The declaration to which the defendant has demurred contains two counts, each of which makes the written policy or guaranty of title issued by the defendant a part of the pleading. The breach alleged in the first count is “that the premises were encumbered by confirmed taxes and assessments which were a lien upon said property at the time that the same was conveyed to the plaintiff; and that plaintiff thereby has been injured and prevented from selling and disposing of the same, and plaintiff' was deprived of said premises by reason of the encumbrances. The breach alleged in the second count is that by reason of two certain encumbrances the plaintiff did not obtain a good and sufficient title to the premises and thereby has been prevented from selling the same and has lost the premises by reason of said encumbrances." [75] The loss against which the policy of the defendant guarantees the plaintiff is to be ascertained in the manner provided by the conditions of the policy, and is payable upon compliance with such conditions and not otherwise. Among these conditions, section 9 provides that no claim shall arise under the guaranty unless (1) the party guaranteed has been actually evicted under adverse title, or (2) there has been a final judgment or decree upon an encumbrance not excepted, or (3) the party guaranteed has contracted to sell the guaranteed estate, and the title has been rejected because of a defect or encumbrance. Unless, therefore, the pleader has set out in his declaration that loss has befallen him in one of these modes, he has not shown any right of action under the contract upon which he sues. It is clear- that no eviction has been pleaded, hence condition 1 has not been complied with. Borton v. West Jersey Title Co., 35 Vroom 24. The statements in the first count that “said premises are encumbered by confirmed taxes and assessments which were a lien upon the property,” and in the second count that “two certain encumbrances against said property, &c., do not have any tendency to fulfill the requirement of condition 2, which contemplates a judicial determination’evinced by a judgment or decree. As to condition 3, neither count sets up any state of facts from which it can he deduced that any specific contract to sell the guaranteed property had been made and that the title thereof was therein rejected because of said encumbrance. The general statements of the narr., with respect to encumbrances, expenses and loss of values, are entirely inadequate' to display a cause of action under the contract by which alone these parties are bound to each other. ’ The demurrer is sustained, with costs.