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contractplaintiffdefendantdamagestrialmotion
contractplaintiffdefendantdamagestrial

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Countrywood Estates, Inc. v. Donnelly, 42 N.J.Super. 456, 127 A.2d 176

Facts

The plaintiff entered into a contract to sell a dwelling house to the defendants, who took possession prior to the closing of title. The defendants made payments towards the purchase price and occupancy value but allegedly breached the agreement, leading the plaintiff to seek possession and mesne profits. The defendants moved to change the venue from Sussex County to Morris County, where the property is located, but the trial court denied the motion.

The plaintiff entered into a contract dated August 11, 1954 to sell to the defendants a dwelling house described as Lot No. 6, in Block 1-A, on Map of Countrywood Estates, Inc., Hanover Township, Morris County, New Jersey. On October 23, 1954, the house having been completed and the defendants desiring to take possession prior to the closing of title and of a mortgage loan, the proceeds of which were to be used to pay part of the purchase price, the parties entered into a supplemental written agreement.

Issue

Whether the trial court erred in denying the defendants' motion to change the venue from Sussex County to Morris County, where the real property described in the complaint is located.

The sole question for determination is venue-whether it was properly laid in Sussex County or should have been laid in Morris County where the real property described in the complaint is located.

Rule

In actions affecting the title to real property or an interest therein, possessory or otherwise, or for damages thereto, the venue shall be laid in the county in which any property affected is situate.

R.R. 4:3-2 concerns the venue of an action and provides as follows: 'In actions affecting the title to real property or an interest therein, possessory or otherwise, or for damages thereto, * * * the venue Shall be laid by the plaintiff in the county in which any property affected is situate. * * *' (Italics added.)

Analysis

The court analyzed the rule regarding venue and determined that the fourth count of the complaint, which sought possession of real property and mesne profits, clearly affected a possessory interest in real property. The court rejected the trial court's reasoning that the count was merely ancillary to other counts, emphasizing that the language of the rule is clear and mandatory.

The trial court held that the fourth count was merely ancillary to the other counts or major claims in the complaint, but we do not find any basis for such a consideration in the rule, which uses the word 'shall.' There is no equivocation; the language is clear and mandatory.

Conclusion

The court reversed the order denying the motion to change venue, holding that the venue must be laid in the county where the property is located.

The order under review is reversed.

Who won?

The defendants prevailed in the case because the court found that the venue should have been changed to Morris County, where the property is situated.

The defendants moved to change the venue from Sussex County to Morris County for the reason that the complaint affects the possession of real property located in Morris County, relying upon the authority of R.R. 4:3-2.

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