94 N.J. Eq. 436 | N.J. | 1923
The opinion of the court was delivered by
This is an appeal from a final decree of the court of chancery in a suit to quiet title under the statute (Comp. Stat. p. 5399 et seq.) based on a previous decree in the cause which directed the answers filed! by the defendants to be struck out, and that the bill be 'taken as confessed. The grounds for that decree, as recited therein, are that the title involved was settled adversely to the defendants’ claim in two^ cases in the supreme court, and also in a former case in the court of chancery (both identified by name), and that the matter was consequently res adjudícala. So far as appears by the record before us, although all the defendants joined in the notice and petition of appeal, Selina A. Charlton is the only appellant urging it to a hearing, so there should be an affirmance by default as to the other defendants.
The first point argued by counsel is that the action of the court of chancery in striking out the answers was not authorized by the statute or the ordinary practice of the court. The procedure followed was this: complainant gave notice of motion to strike out the answers, specifying the point of res judicata and that the files of the prior.cases already mentioned would be used on the argument. These files appear to have been marked as exhibits and argument to have been had thereon before the chancellor in person; whereupon the answers were struck out, as stated.
As to the propriety of the practice followed, we need search for authority no farther than section 4 of the Chancery act of 1915. P. L. 1915 p. 184, 185. That section provides that “any frivolous or sham defence may be struck out on notice, and a decree pro confesso entered, or the defendant may be
This brings us ta the question whether the decree was justified on the merits, and we conclude that it w'as not. As to the matter sub judice being res judicata by virtue of the judgments in the supreme court, the adequate answer is that both records show a nonsuit and therefore conclude nobody. Beckett v. Stone, 60 N. J. Law 23; Longstreet v. Phile, 39 Id. 63; Snowhill v. Hillyer, 9 Id. 38. And with respect to the former decree in chance^, we think it fails to meet the tests of res judicata. Mrs. Charlton was not a party to that litigation. Her predecessors in title were, but this alone is not enough, for the prior adjudication in order to be binding must have affected the same property as that now in dispute. 23 Cyc. 1253. The land in question in the former suit did not include that described in the present bill. It follows that the court of chancery was in error in summarily holding that complainant’s title as against defendant Charlton was res judicata.
There is another difficulty which we think insurmountable, as it goes to the foundation of the court’s jurisdiction in this case. Under the statute relative to quieting titles, complainant, in order to maintain the action, must be in peaceable possession of the lands, at least as against the defendant.
Eor the reasons above given the decree o£ the court of chancery will be reversed, .and the cause remanded with directions that it be brought to hearing in the ordinary way.
For affirmance—None.
For reversal—The Chief-Justice, Swayze, Tren chard, Parker, Bergen, Black, ICatzenbaci-i, Gardner, Ackerson, Van Buskirk—10.