DeKyne v. LewisDeKyne v. Lewis
This action was tried before the court, without a jury, by consent of the parties, and is decided on the law deemed applicable to the facts found.
The suit was instituted on May 24th, 1924, by plaintiff to recover possession of three certain lots designated as Nos. 564, 566 and 568 on a map of lots of camp-ground of the Ocean Grove Camp Meeting Association of the Methodist Episcopal Church, at Ocean Grove, Neptune township, in Monmouth county. She alleges that her right to such possession accrued on July 15th, 1903 (probably intended for 1904), 'but of which she has been wrongfully deprived by defendant.
The facts are:
1. Plaintiff was the daughter of Jessie L. Day, who was the owner of certain leasehold interests in the lots in question, and died seized thereof July 15th, 1904, testate. The latter’s will was duly admitted to probate by the surrogate September 22d, 1904, as appears by the record in his office in book N-2 of wills, on pages 364, &c. By it Mrs. Day gave the lots
2. The muniments of title to the premises are as follows: To lot No. 566, indenture of lease, bearing date October 6th, 1871, made by the Ocean Grove Camp Meeting Association of the Methodist Episcopal Church to Smith E. Hughes, and recorded in the county clerk’s office, in book 337 of deeds, on pages 148, &e.; to lot No. 564, indenture of lease, dated August 10th, 1871, made by said camp meeting association to William JDolton, recorded in the county clerk’s office, in book 267 of deeds, on pages, 220, &c.: and to lot No. 568, indenture of lease, dated August 18th, 1875, made by the cam]) meeting association to Charles E. Dugan and recorded in the county clerk’s office, in book 328 of deeds, at pages 220, &c. Each of the instruments demised, leased and let the lots in question to the lessee, his executors, administrators and assigns, for and during the full end and term of ninety-nine years from the date thereof, renewable to such lessee, his heirs and assigns, for a like term of years, forever; paying therefor to the lessor (camp meeting association) as and for a yearly rent not to exceed seven per cent, of the consideration paid, at such time or times in each year of the term as the same may be required by such lessor, its successors or assigns. By a series of mesne written assignments of these leases, duly executed, acknowledged and recorded, the records of which were offered in evidence, Mrs. Day, mother of plaintiff, became the owner of these leasehold interests. Plaintiff then acquired them byr virtue of the will to which reference is made.
3. On January' 27th, 1906, plaintiff, then the wife of George A. DeKyne, but from whom she was living apart, assigned, transferred and set over the original leases, on sufficient consideration, to Leslie H. Crouch and Harry A. Eeeder, their executors, administrators and assigns, which assignment was in writing (the record was offered in evidence), duly acknowl
4. The record of several certificates of tax sale of the lots in question which had been assessed to plaintiff’s mother made by the township of Neptune, within which taxing district the lands lie, was offered in evidence, together with the record of quit-claim deeds, covering the term of years for which they were sold for such unpaid taxes from the township to Grouch and Feeder, plaintiff’s assignees of the leasehold, interests in question, in which quit-claim deeds the taxes involved were certified as having been paid by them as consideration therefor.
5. Commencing with the possession of Jessie Day, mother of plaintiff, through the various assignments of the leasehold interests to the defendant, the several holders of such title executed mortgages upon the premises, evidence of which was offered at the trial, but which mortgages were paid by them or their successors in title and canceled of record with the exception of two — one for $6,000, bearing date May 10th, 1913, made by John B. Sherman and Lydia E. Sherman, his wife, and assigned to the Ocean Grove National Bank, which mortgage and assignment thereof were duly recorded, and the mortgage remains a subsisting lien on said leasehold interest in said premises; while the other, a mortgage dated May lltli, 1914, for $900, made by John B. Sherman and Lydia Sherman, his wife, to Elbert S. Sherman, has never been paid and is a lien and encumbrance thereon.
6. The defendant and her predecessors in title to the leasehold interests in question have had an uninterrupted and undisputed possession of the premises from the time of the written assignment by plaintiff in 1906 of the original leases made by the camp meeting association referred to in para
7. The usual and customary manner of selling and transferring the possession of lots belonging to the Ocean Grove Camp Meeting Association is in the form of written assignments of original leases made by the association. Plaintiff’s predecessors in title (including her mother) acquired their interests by such assignments of leases.
8. Plaintiff bases her claim of right to possession in this action on the ground that the original leases made by the camp meeting association were, in effect, conveyances in fee of the land, because of the long terms with the option to renew, which fee was vested in her by her mother’s will, and that the written assignment made by her (plaintiff) to Leslie H. Crouch and Harry A. Feeder, even though on sufficient consideration, was void under section 14 of the Married Women’s act (3 Comp. Stat., p. 3237), inasmuch as her husband, George A. DeKyne, did not join her in the execution thereof. No children were born of their marriage and said George A. DeKyne died before the institution of this suit.
The court is urged to hold that the original leases and the mesne assignments to plaintiff’s mother covered, in fact, the fee in the locus in quo or at least vested in the lessees and assignees an estate equivalent thereto, whereby the assignment made in 1906 by plaintiff was, in effect, a conveyance of her “real estate” and within the purview of section 14 of the Married Women’s act (3 Comp. Stat., p. 3237); that it was therefore void because her husband did not join therein, even though it was deliberately executed by her and acknowledged as required by section 39 of the Conveyancing act (2 Comp. Stat., p. 1547), upon a legal consideration and with
Is the court permitted to hold, however, that her assignment of the leases in question was a conveyance of her “real estate” within the intent and meaning of the section of the Married Women’s act invoked? It is thought not. It is to be remembered that we are concerned with the definite term of ninety-nine years, not with the option to renew for a like term forever, since the time for the exercise of such option has not arrived and it may not be legally presumed that it will be so exercised. The leases in question are neither deeds nor conveyances within the commonly accepted definition and do not convey lands, tenements and hereditaments which comprehend only freehold estates. They are obviously leases for years and confer no estate in the lands demised beyond the recognized leasehold interest. Language appropriate to that end is used and no intent appears on the part of the lessor (camp meeting association) to divest itself of the fee. A term of years, while denominated a chattel real is not, when speaking with legal accuracy, considered “real estate,” but on the contrary is considered personal property, whatever might be its duration in years, whether for one or twenty or ninety-nine years. 22 R. C. L. 65, § 40. A lease for ninety-
Moreover, plaintiff’s title could not rise above its source. We cannot be concerned with the option to renew because ii had not been exercised and could not have been at the time of the assignment. Her mother did not have a title in fee-simple, from which an estate of inheritance of that character could accrue to the daughter under her will. In the circumstances, it seems clear that the plaintiff could legally sell and dispose of the leasehold interest given and bequeathed to her by her mother in the same manner as a feme sole, with the qualification perhaps that the execution and acknowledgment be in compliance with section 39 of the Conveyancing act, as it was. Inasmuch as she did not become seized of or the owner of the fee in the land in question before or during coverture, her husband, DeKyne, had and could have no estate by curtesy initiate therein. Hackensack Trust Co. v. Tracy, supra. She acquired under her mother’s will an interest held to be a chattel real which is personalty, and the
But if it be assumed that the consent of plaintiff’s husband was legally necessary, that is to say, that he should have joined in the execution of the assignment, which in all other respects, including execution and acknowledgment, was in due form under the statute, plaintiff can take nothing of the irregularity. Pamph. L. 1926, ch. 154, p. 258, being in terms retroactive, is applicable and curative in its nature, and even though enacted after the institution of this suit, is regarded as dispositive of the issue. Tin; court feels bound to take cognizance of it and apply it, especially as it became the law before trial of this action and rendition of judgment. 36 Cyc. 1221, 1222; Bonney v. Reed, Collector, 31 N. J. L. 133. This statute and a similar one were construed in Hannan v. Wilson, 5 N. J. Adv. R. 273, and Ely v. Pontieri, Ibid. 317. It is to be remembered that plaintiff’s interest in the premises was given and bequeathed to her by her mother. Such interest was a leasehold, became her own property, subject to her separate use as if feme sole free from control of her husband, subject, it seems, however, to sale with his assent. Porch v. Fries, 18 N. J. Eq. 204, 208. But it is not perceived why he could not just as effectively have given his assent through the medium of the quit-claim deed formally executed and acknowledged by him two days after the assignment of plaintiff and recorded simultaneously therewith as though he had joined her in such assignment. The purpose of both the wife and husband was to divest themselves of all interest in the premises. He has since died without issue of the marriage. The evidence in the ease, therefore, discloses cogent and excellent reasons for holding the Curative act of 1926, supra, applicable, especially as it clearly indicates a legislative intent to make it retroactive.
Tf, moreover, it be again assumed that plaintiff’s interest in the premises was in the nature of a fee and the assignment a deed, the evidence justifies the inference of fact that she and her husband were living apart in 1906, and at the time of her execution of the assignment, she appears to have
For the foregoing reasons, the issue submitted must be resolved against the plaintiff. Exceptions will be allowed as ground for appeal. Judgment may be entered in favor of defendant, with costs.