73 N.J. Eq. 399 | N.J. | 1908
The opinion of the court was delivered by
This is a ease of a feigned issue out of chancery on a bill to quiet title. The complainant was plaintiff, and a verdict was directed in his favor. An application for a new trial was denied by the chancellor and this appeal taken.
The defendants argue that the monument is not this division line but a corner on the line, and that the expression must mean an already established corner and not the new corner formed by the conveyance itself. But this also involves a question of construction and not of actual location on the ground. We think the construction adopted by the judge was correct. It is quite as much in harmony with the natural meaning of thé words as the construction contended for by the defendants, and unlike the latter, does not require the assumption that a course was omitted from the description. Such an assumption ought not to be made in a case where the description, as given, closes, and errs only in making one distance too great, especially since this error may be explained by the precipitous nature of the ground.
The next question is whether Schmitt is estopped by the fact that in 1869, and long before he purchased, the Hoboken Land and Improvement Company bought of the defendants or their predecessors in title, another tract, a portion of the land con
Nor did the deed of 1869 amount to a practical location of the boundary by the acquiescence of the Hoboken Land and Improvement Company. It may have amounted to a recognition of a claim of the boundary by the defendants and a willingness on the part of the land and improvement company to buy the title whatever it- was, .so far as concerned the land in question, but it lacks the elements of a practical location. • ■
The last question in the case is whether there was evidence of adverse possession sufficient to require that the case be submitted to the jury. We fail to find in the case evidence of adverse possession of the locus in quo for the requisite length of time. The defendants’ case, in this respect, rests upon acts of possession on land included in a deed made in 1823, which conveyed not only the land in dispute but also land to which the title of defendants’ predecessors in title is unquestioned, and the proposition is that quarrying on any part of the tract was evidence of a possession co-extensive with the boundaries of the deed of 1823. The subject of possession under color of title was thoroughly discussed by this court in Foulks v. Bond, 41 N. J. Law (12 Vr.) 527, and it was held (at p. 550) that acts of ownership, in places upon the tract, were considered as competent evidence of possession of the whole, where there was a unity of character in the location. The unity of character there referred to was of physical character but the same reasoning would be applicable to the character of the title of the disseizor; a tract to which he had a legal' title would, in contemplation of law, be distinct from a tract to which he had no title, and possession of
The order should be affirmed, with costs.
For affirmance — The Chancellor, Chief-Justice, Garrison, Swayze, Reed, TKenchard, Bogert, Vredenburgi-i, Vroom, Green, Gray, Dill — 12.
For reversal — None.