Opinion
10-30-1903
BRADLEY v. McPHERSON et al.
C. A. Bourgeois, for complainant. C. L. Cole, for defendants.
Bill to quiet title by Thomas Bradley against Jane D. McPherson and others. On petition by certain defendants to open a final decree entered by default. Petition granted.
C. A. Bourgeois, for complainant.
C. L. Cole, for defendants.
GREY, V. C. A final decree was entered in this cause on August 6, 1903, for want of a defense. On September 1, 1903, a petition was filed by the executors of John McPherson, defendants in the suit, praying that the decree might be opened, and they be permitted to plead, answer, or demur to the bill of complaint A hearing was had on testimony taken on the question of opening the decree. A memorandum was filed by the vice chancellor declaring that he was unable to consider the matter for the reason that it appeared that the executors of John McPherson, the petitioning defendants who sought to open the decree, have neither title to the land nor any equity therein; that the title appeared to be in the devisees of John McPherson, who, though they were defendants in the suit, and concluded by the decree, did not join in the petition to have the decree opened. Since the filing of that memorandum on October 16, 1903, counsel for the complainant has agreed that the petition of the executors of McPherson shall be considered to be amended so that the devisees of McPherson shall also appear to be petitioners seeking to open the decree. This relieves the applying parties from the objection that they have no interest in the title, and presents the question of opening the decree upon its merits.
Two points are to be considered upon such an application. It must appear that the applyingparty has a meritorious case—that is, one which is not frivolous, but is worthy of a hearing before the court, either on matter of fact or law; and, secondly, that the applying party has been surprised, or by misadventure deprived of the opportunity to submit his defense to the consideration of the court. The complainant insists that the petitioners, devisees of McPherson, base their right to be heard upon a claim which is in itself a fraud. The proof taken shows that each of the parties has obtained a grant from the riparian commissioners, and that the dispute between them as to the efficiency of their respective grants was the real occasion for the bringing of the suit to quiet title. Whether either grant was a fraud cannot be determined in this preliminary way of affidavits. It also appears that the McPherson party always supposed and intended that their claim to the lands in question should, in due course of law, be presented in the suit for consideration and determination. There was at no time any intended or conscious abandonment of it. It is not necessary for the petitioner in an application of this kind to show as merits that his claim is so superior to that of the party who has entered the decree that the petitioner is unquestionably entitled to the favorable judgment of the court. All that he need show by way of merits is that he has a claim which is of such merit that the court may be asked to pass upon it. The case on the part of the petitioners is such that their claim under their riparian grant ought to be heard and determined by the court. The element of surprise appears to have happened in this way: A previous suit to quiet the title was begun by those interested on the same side as the present complainant, Bradley, against Mr. McPherson, in his lifetime. Counsel were employed to defend that suit. Pending it Mr. McPherson died. His executors and devisees were made defendants in that suit, but it does not appear to have been any further prosecuted. Upon Mr. McPherson's death his executors appear to have employed one counsel and his devisees another, and they seem to some extent to have depended for the defense which they supposed was being made upon counsel for Mr. Dick, another defendant interested with Mr. McPherson in his lifetime. A confusion appears to have arisen between the counsel employed. Each was uncertain as to which one should file the defense for the McPherson devisees. The last day for the filing of a defense was the 22d day of July, 1903. Mr. Ware, who had formally appeared for the devisees, went to Atlantic City, and called upon Mr. Repetto, counsel for Mr. Dick, but was unable to find him at home. He also called upon Mr. Bourgeois, the solicitor of the complainant, and was told by him that it was too late to file an answer, as he had already sent up his decree to be signed. Mr. Ware testifies that this was a great surprise to him, and on his return to Bridgeton (his place of residence) he Immediately made arrangements to retain counsel to have the decree opened. The case exhibited is one where a party appears to have believed that the defense was being made, and by misunderstanding of misadventure of counsel no defense was made. The decree in the case is marked, signed, and filed August 6, 1903. The case exhibited shows such a condition of surprise as justifies the opening of the decree in order that a defense may be made by the devisees of McPherson.
It appears that subsequently to the decree, and on the day that the petition to reopen it was filed, the complainant, Bradley, who had obtained the quieting decree to be entered, conveyed portions of the premises in question to other parties. If the decree is to be opened, the complainant, who appears to have been strictly within his rights in entering the decree, should be heard upon the terms to be imposed as a condition for the opening of it.
Counsel for the petitioners may present upon notice to counsel for the complainant an order opening the decree, and both sides may be heard upon the terms.