56 N.J. Eq. 749 | New York Court of Chancery | 1898
The statute under which the complainant is proceeding in this court directs, that upon the application of either party, an issue at law shall be directed to try the validity of the claims set up by the litigants. Gen. Stat. p. 3487. Such an application has been' made in behalf of the defendants, who insist that they also' have a right to try in this court, as a preliminary issue, the question whether the complainant has such a peaceable possession of the premises in question as gives it standing to file its bill under the statute. The established practice of the court is to try this issue in this court before awarding an issue at law, because if it be found that the complainant has no such possession as is necessary to meet the statutory requirements, then it has no right to cast upon the defendants the burden of making primary proof of their title in a court of law. Powell v. Mayo, 9 C. E. Gr. 178; Beale v. Blake, 18 Stew. Eq. 668.
The possession required by the statute is a peaceable possession. It is not disputed that the a'cts done by the grantors of the complainant and by it, in the náture of assertions of possession, were peaceable. No claim is made of any violence, nor of any resistance, nor of any disputation of the action of the complainant company.
This peaceable possession must exist at the time of the filing of the bill, but the evidence of such a possession may be the action of the complainant, and of those under whom it claims, at any reasonable time preceding the beginning of the action of this court. Any acts regarding the premises which would naturally convey to an onlooker the sense that the party doing or directing them was the owner, are evidential of such a possession as the statute contemplates. These acts must necessarily vary greatly according to the character of the property in question. A house would not be dealt with as would a tract of woodland, nor a sand-beach property as would a farm.
The claim of the defendants, so far as it is defined by their testimony, applies to a triangular piece lying nearly in the middle of the tract claimed to be in possession of the complainant, its base being on the southwesterly end and its apex near the northeasterly end of that tract. In this triangle the defendants claim to hold fifty-eight undivided twenty-seven hundredths parts.
The complainant’s grantor and also the complainant, treated the whole seventy-seven acres as one tract, and did the acts which are claimed to show possession indiscriminately over the whole property, making no distinction between the triangle claimed by defendants and the rest of the property. In all their acts they dealt with the tract as sole owners of the entirety, and no proof indicates any recognition of the claimed undivided interest of the defendants in the triangle. On the ground there was nothing in the nature of a monument or any natural or artificial boundary defining the extent or location of the inner triangular plot claimed by defendants. Nor was any evidence offered that the defendants had ever entered on the premises they claim, or had in any way taken possession or done any act on the triangular plot having the color of possessory right. Their whole assertion of interest seems to exist solely in the statements of surveys, resurveys and deeds. No one going upon the land would find there anything to indicate the existence of the triangular plot as a separate ownership.
On the purchase of the property by the complainant, in 1889,. it made another map of the whole tract, and laid it out in lots
The various acts narrated were such as were required for the development and improvement of the lands for sale in town lots or for the protection of the tract from the wash of the ocean. They were of such a visible and notorious character that everyone visiting the tract must observe them. They were operations which manifestly indicated a possession and caretaking by the doer of them, which none but an owner would exercise. The triangle in which the defendants claim an undivided interest
The things done were not in the nature of trespasses by which the party doing them took something off or gained a profit from the land, but they involved the doing of labor upon the land and actual expenditure of money for the improvement and development and protection of the land itself, and gave notice to the observer that the party doing these acts looked to the land and its future for his recompense. In short, they spoke of possession and improvement by an owner.
In my view, the proofs submitted of peaceable possession of the premises by the complainant antecedent to and at the time -of the filing of the bill in this cause show a possession as full .and completé as the character of the property in question required of the possessor.
But if the uncontradicted acts of possession done by the complainant’s grantor and by the complainant themselves, for years prior and up to the filing of the bill in this case, leave the question of possession doubtful, the operation of the statute of April 4th, 1891, a supplement to the “Act .to compel the determination of claims to real estate,” &c., must certainly aid the proofs submitted, by making the acts done by their grantees evidential of the complainant’s possession. That supplement provides that when a person or corporation shall be in peaceable possession of land, and shall cause a map to be made and filed, dividing the land into lots, laying out and dedicating streets on it, and shall have sold and conveyed any lots, then, to avoid a multiplicity of suits, the grantor may maintain a suit in chancery under the original act, notwithstanding these conveyances, and for the purposes of that suit, “the title and possession of the grantee of the lots shall be deemed and taken to be the title and possession of the complainant.” The complainant’s case precisely fits the ¡recited circumstances, for it makes the erection and occupancy
The defendants deny that this statute has any other efficacy than to enable the complainant to file a bill to quiet the title to the lots which he may have already sold. Such a construction far from avoiding a multiplicity of suits, would necessitate one bill to quiet the title to the lots sold, and another to those lots-which were unsold, both involving precisely the same title. The object of the supplement- is plainly to enable the owner, who has divided his land into many lots, and has irretrievably committed his property by dedication of streets and conveyance, to use as a town or village, to settle, once and for all, the title not only to what he has sold, but also to what he intends to sell by a single suit under the act.
The mischief which the statute sought to remedy was the inability of the grantor who had conveyed a lot, to include in the bill to quiet title to his own lands, the lot which he had theretofore conveyed away, perhaps with warranty of title. The statute remedied this difficulty, gave the grantor this power, saved a dismissal of the bill because of the inclusion of the lots sold, and burdened the claiming defendant with the declaration that in such a suit the title and possession of the grantees of the lots should be deemed and taken to be the title and possession of the complainants in such suit. The effect of this statutory declaration, if the owner files his bill to quiet title to-the whole tract mapped, is to impose upon the defendant the burden of recognizing the title and possession of the grantees of lots as the possession and title of the grantor complainant.
The defendants have by their own testimony proved that the Sharpless cottage was located upon the triangle. It appears this-is a summer cottage erected on a lot conveyed by the complainant, and occupied every summer since 1892, when it was built. Under the terms of the supplement above referred to, the title and possession of its grantee, must be taken to be the title and possession of the complainant. So that it affirmatively appears that this Sharpless cottage was located on a portion of land claimed by defendants at the time the bill was filed, and this-
The defendant admits in his brief that if the complainant shows “ actual peaceable possession of any part of the land described in the defendants’ answer, it is entitled to maintain its suit as to the whole of the land described in defendants’ answer,” but they deny that -a showing of possession of adjoining lands will justify a bill to include the lands in defendants’ answer.
The acts of possession shown by complainant were not limited to the lands adjoining those claimed by defendants. The general improvements of staking out streets, grading the tract, keeping out the ocean by “ brushing,” and other acts of development and caretaking indiscriminately covered the whole tract, including defendants’ triangle. Twenty-fourth street is built, curbed and graded on the triangle, and so the Sharpless cottage is on it.
The defendants insist that the complainant has a full remedy by a suit against them in ejectment. The act authorizing bills to be filed to quiet titles has been declared by the court of errors to be designed for the relief of parties in peaceable possession who had no means of contesting the adverse claim by a suit at law. Sheppard v. Nixon, 16 Stew. Eq. 632, and cases cited.
The defendants refer to the twenty-fourth section of the Ejectment act (Gen. Stat. p. 1285), which provides for suit in ejectment between joint tenants and tenants in common as enabling the complainant to sue in ejectment. But the complainant does not claim to be a tenant in common with the defendants, and nothing in the case touching the possession, which is the only matter now in issue, indicates that any such relationship exists between the parties. That is the defendants’ claim which the complainant denies.
The defendants also refer to Gen. Stat. p. 1284 § 22 as providing for making defendant a person not in actual possession. That section does provide that such a person may disclaim and subject the plaintiff to costs, but does not provide that he shall defend or have judgment go against him.
They also contend that section 40 provides for an ejectment
So they say that section 3 of the Ejectment act provides for making defendant one claiming a right of possession, or title in the lands. In fact, that section declares that the defendant “shall be the person in possession, if the premises are occupied, or some person exercising ownership of the premises or claiming title thereto in ease they are unoeeupied.” The complainant here insists that it is itself in the occupation of the whole premises.
These sections, notably sections 3 and 24, while they do not enable the complainant to sue the defendants in ejectment, have always empowered the defendants to bring an ejectment against the complainant to test the validity of their claims. They have not seen fit to begin such a suit. The complainant, to bring an ejectment against the defendants under those sections, must abandon, at the start, its position as sole owner of the entirety in the actual possession of the whole tract, and must concede that the defendants claim title to unoccupied premises or that they are tenants in common with the complainant. I do not consider that the complainant is under any obligation to surrender its claim to sole ownership of the whole tract. The defendants 'have done nothing to assert their title or possession, save to set up by a paper title an undivided interest in a part of the lands of which the complainant is in possession by nearly all the acts of open ownership of which the lands in question are capable. Such a course cannot result in settling their claim, thougli it does subject the complainant to much embarrassment and conse-. quent loss of sales.
In my judgment the complainant has a right to maintain its bill to compel the determination and settlement of the defendants’ claim. I will advise a decree in accordance with the views above expressed.