Opinion
01-29-1932
HUDSON GUILD et al. v. MORRIS CANAL & BANKING CO.
Griffin & Griffin, of Jersey City, for complainants. William A. Stevens, Atty. Gen., and Sackett M. Dickinson, of Trenton, for defendant.
Suit by Hudson Guild and another against the Morris Canal & Banking Company, in trust for the state of New Jersey.
Decree for complainants.
Griffin & Griffin, of Jersey City, for complainants.
William A. Stevens, Atty. Gen., and Sackett M. Dickinson, of Trenton, for defendant.
WM. J. BACKES, Special Judge.
The bill is filed to obtain a decree quieting title to a tract of land of 69.14 acres in Byram township, Sussex county.
The facts necessary to give jurisdiction under the Quiet Title Statute (4 Comp. St. 1910, p. 5399, § 1 et seq.) are alleged in the bill. The defendant by its answer claims title to the lands in fee, and sets up the source from which such claim of title is derived. In its replication, complainant sets up its title and the source from which it is derived. The source of title was also set up in the bill, but should not have been. Fittichauer v. Metropolitan Fire Proofing Co., 70 N. J. Eq. 429, 61 A. 746; Blackwood Improvement Co. v. Public Service Corp., 91 N. J. Eq. 220, 109 A. 820.
The source of complainant's title is as follows: In 1802, a return of a survey for the lands in question was made by a deputy surveyor of the proprietors of East Jersey to Joseph Sharp and Ellas Ogden. This return constituted them joint tenants, and, on the death of Ogden about 1805, Sharp became the sole owner by survivorship. He died in 1845. By his will, proved October 14, 1845, he specifically devised certain tracts of land, but not the tract in question, and authorized and empowered his executors and the survivor of them to sell and convey all his real estate which had not been thereinbefore devised, and to execute conveyances for the same. He appointed his son Isaac Sharp, and his sons-in-law Thomas B. Dekay and Horace Vibert, bis executors. After the death of these executors, Isaac Sharp, a grandson of the testator, took out letters of administration de bonis non cum testamento annexo upon his estate, and, as such administrator, by deed dated April 8, 1871, conveyed the lands to Samuel T. Smith.
On November 26, 1871, Seymour R. Smith, as sole executor of Samuel T. Smith, conveyed the land to Jeremiah Thomas, who held it until November 23, 1903, when he conveyed it to Barbara M. McRoy. On June 8, 1917, the latter and John T. McRoy, her husband, conveyed it to Hudson Guild, and on September 8, 1927, Hudson Guild conveyed it to complainant Hudson Guild Farm.
The source of defendant's claim of title is as follows: On July 1, 1831, Charles T. Randolph conveyed the land to Joseph Wood, who on June 10, 1835, conveyed to Alexander McKain, who on July 22, 1855, conveyed to the Morris Canal & Banking Company, and by Act of the Legislature approved February 28, 1923 (P. L. 1923, page 34 [Comp. St. Supp. § 170—144f (1)]), the title to the land, among others, was vested in the canal company in trust for the state of New Jersey. The deeds put in proof are all of record in the Sussex county clerk's office.
The deed from Randolph to Wood contains no recital of Randolph's grantor, but in the deeds from Wood to McKain, and from the latter to the canal company, it is recited that the premises are the "same tract of land that was returned to Joseph Sharp and Elias Ogden at the Surveyor Generals Office at Perth Amboy in Book S-14 page 219 the 15th day of June, in the year of —— Lord eighteen hundred and two——."
The power vested by the will of Joseph Sharp in his executors to sell and convey is by statute conferred upon the administrator cum testamento annexo, and a sale and conveyance by him is declared to be as valid as if made by the executors named in the will. Nixon's Digest (1709-1855), p. 258, § 20 (Revision 1877, p. 398, § 11); 2 Comp. St. 1910, p. 2262, § 13; Howell v. Sebring, 14 N. J. Eq. 84. The complainant has therefore shown complete paper title unto itself out of the proprietors of East Jersey.
Approximately four-fifths of the land is covered by Bear pond, the remainder is wild and uninclosed. The dam of the pond is ancient. No proof was submitted to show when or by whom it was first erected, and the only acts of ownership and dominion over the land by the canal company was an occasional entry on it to repair the dam. The land has been in the possession and occupied by Barbara M. McRoy and John T. McRoy from the time of the conveyance to them in 1903, and by their grantee and the complainant ever since. The earliest available tax records of the township show that this land, together with other land, was assessed for taxes in the name of Barbara M. McRoy in the year 1908, and in her name and the Hudson Guild yearly afterwards, and that such taxes were paid by them. It was admitted that the canal company never paid any taxes.
The jurisdictional facts were conceded. The burden consequently was on the defendant to establish its claim by proof. Moore Securities Co. v. Schaffer, 97 N. J. Eq. 296, 127 A. 206. This it has failed to do, and a decree will be advised in accordance with the prayer of the bill.