BACKES, Vice Chancellor.

Suit by the Rynda Development Company and another against Amelia R. Gluck and others. Bill dismissed.

See, also, 97 N. J. Eq. 72, 127 A. 335; 130 A. 809; 134 A. 363.

C. Herbert Walker, of Newark, for complainants.

Michael J. Tansey, of Newark, for defendants.

BACKES, Vice Chancellor. The amended bill is to quiet the title to land. The complainants' allegation of peaceable possession is denied.

The proofs show that the Rynda Development Company, owner, agreed in writing to sell the land, a building lot, to the Chemtec Company, Inc., and let the purchaser into possession for the purpose of building a house. The Chemtec Company transferred its interest to, and agreed to build the house for, Amelia R. Gluck, and partly built it. The Rynda Company thereupon negotiated with her as buyer, but the deal was not consummated, each blaming the other for the failure to conclude it. Materialmen filed mechanics' liens, recovered judgments, and sold the property under special fi. fas. It was struck off to the Arlington Realty Company, which refused to take title until it could be determined what title it would get under the sheriff's deed. The Arlington Company nevertheless took possession of the house, under permission of the Rynda Company, over the protest of Mrs. Gluck.

Mrs. Gluck was last in lawful and peaceable possession. The Arlington Company acquired no right to possession by its incomplete sheriff's sale purchase. The Rynda Company's permission to take possession and the Arlington Company's ouster of Mrs. Gluck did not vest a peaceable possession.

Actual peaceable possession, not a disputed possession under a claim of right of possession, is the jurisdictional test in actions under the statute. Fittichauer v. Metropolitan Fire Proofing Co., 70 N. J. Eq. 429, 61 A. 746.

The complainants have failed to meet the statutory requirement, and the bill will be dismissed, but without prejudice.

If the complainants will present a properly drawn bill charging that the defendant Gluck claims title to the property under the deed, the photostatic copy of which is on record, and that it is a cloud on the title, and prays that the original and photostatic copy be declared null and void, relief may be granted. I am satisfied that the original deed was never delivered and that the recorded copy is a fraud.