Opinion
No. 43/577.
03-06-1919
GRASSMAN et al. v. BADGLEY et al.
On exceptions to master's report. Decree for partition. Day, Day, Smith & Slingerland, of Newark, for exceptants.
(Syllabus by the Court.)
Partition suit by Edward J. Grassman and others against Samuel S. Badgley and others.
On exceptions to master's report. Decree for partition.
Day, Day, Smith & Slingerland, of Newark, for exceptants.
LANE, V. C. This is a partition suit in which the master has reported that it has not been proven before him that complainant has title to any part of the lands and premises referred to in the bill, and that the description of the property in the bill is too indefinite. The premises sought to be partitioned are vacant salt meadow lands in the city of Elizabeth described in the bill of complaint as a tract or parcel of land and premisessituate, lying, and being in the city of Elizabeth, county of Union, and state of New Jersey, being a tract of salt meadow containing six acres, more or less, and lying and being in the Elizabeth Town Great Meadows and adjoining meadows of Aaron Bryant and others. The history of the title is as follows: Samuel Badgley died in 1844, leaving a last will and testament duly probated, and by such will, which was made in 1836, he devised to his son Henry "the one equal one-half part of a lot of salt meadow I now own near Elizabeth Town containing in all about six acres," and to his son Jacob the other equal half part of a lot of salt meadow. By deed dated April 1, 1845, a daughter of Henry conveyed what is stated in the deed to be one undivided sixth part of several tracts of land in the townships of Springfield, New Providence, and Westfleld, in the county of Essex, N. J., to Samuel S. Badgley, another child of Henry, and among the tracts conveyed is the sixth described as follows:
"Being a piece of salt meadow adjoining Jacob P. Badgley and others."
It is stated in the deed:
"All of which tracts of land are the same owned by Henry Badgley late of Springfield and of which he died seized and it is the intention hereby to convey all right, title and interest of the said Jeremiah and Lavinia, his wife, of, in and to the estate, lands, etc., whereof the said Henry Badgley died seized wheresoever the same may he as heirs at law of the said Henry Badgley, deceased."
There never was any salt meadow in the township of Springfield, and the lands referred to in the last deed must have been the salt meadow near Elizabeth Town referred to in the will of Samuel Badgley and by him devised to his sons, Jacob and Henry, in equal parts. Nothing further of record directly affecting the lands in question appears until deeds obtained by complainant from various of the heirs at law of Jacob and Henry during the last few years were recorded on October 30, 1918. No conveyance, grant, or devise of any description unto Samuel Badgley is shown. On September 28, 1825, one Clark conveyed to one Martin a tract of land adjoining the lands sought to be partitioned, and in the description of this adjoining tract is contained the following: "Thence along his line and Samuel Badgley's to the east," etc.—and the following: "Bounded * * * easterly by the meadows of William Dayton and Samuel Badgleys." By deed dated December 4, 1816, one Dayton conveyed to one Bryant lands adjoining in which conveyance the lands in question are referred to as those of William Price. By deed dated May 19, 1854, one Norris, executor, conveyed to one Wade lands adjoining in which the lands in question are referred to as follows: "Thence (3) south * * * to a stake standing as a corner of John Henderson's meadow." The testimony is to the effect that there are no conveyances or devises affecting the lands in question out of or into either Price or Henderson. Elizabeth Rabig, 52 years of age, a daughter of Phebe Dillon, who was a daughter of Henry Badgley, testified that she had often heard her mother speak of the six-acre tract of meadow land in the Elizabeth Meadows of which her grandfather, Samuel Badgley, died seized. Joseph Brant, 76 years of age, the husband of one of the children of Mary Welshman, who was a daughter of Henry Badgley, testified that he had always known about the interest his wife had in the six-acre tract of salt meadow in the Elizabeth Town Great Meadows of which her great-grandfather, Samuel Badgley, died seized.
Complainant Grassman, who is a civil engineer and surveyor, testified that he had examined the records, and that he knew that the sixth described tract in the deed of 1845 was called the Badgley Meadow, and that it is known that this meadow was cut by the Badgleys about 40 years ago, and that one of the oldest members of the family definitely located the tract which that family owned as being the tract under partition.
At the time the bill was filed the lands were unoccupied, and had been for many years. The only evidence of any act of possession was the testimony of Grassman that it was generally known that the Badgley family cut the land for salt hay about 40 years ago. The lands are incapable of continuous physical occupation in their present condition. The only act of ownership that complainant has performed has been to go over the land in a general way. They have not been fenced or posted. There is nothing to prevent complainant from entering upon the lands, so far as they may be entered upon, and from fencing or posting them. There is no one in possession and no one, so far as known, asserting an adverse title.
The master based his determination upon section 1 of an Act Concerning Partition (3 C. S. of N. J. p. 3897), holding in effect that before there can be partition in this court complainant must prove his title. But the power of this court to decree partition is not limited by the statute. Section 44 of the act (3 C. S. of N. J. p. 3910) provides that the Court of Chancery shall have power, upon bill filed in that court for the partition of real estate, to decree the sale thereof, and the jurisdiction of said court shall continue as heretofore, anything in this act to the contrary notwithstanding. The jurisdiction of a court of equity to decree partition is not based upon statute. 17 American & English Encyc. of Law (1st Ed.) pp. 677, 679; 1 Story's Equity Jurisprudence (11th Ed.) p. 683 et seq., §§ 646 et seq.; Hay v. Estell, 18N. J. Eq. 251. The statutory method does not deprive courts of equity of their inherent power. Gutheridge v. Gutheridge (Court of Appeals of Texas) 161 S. W. 892.
The rule has been generally expressed that, even in case of a default, the court, before decreeing partition, will require evidence which would prima facie entitle the party to a verdict in ejectment. 17 American & English Encyc. of Law (1st Ed.) 745, subd. "c"; 30 Cyc. title "Partition," p. 246, subd. "b," note 80. It will be observed, however, that the cases cited in support of the general proposition are cases from New York, and that these cases are based upon a construction of their statute. It is uniformly held in ejectment that a prima facie title is at least established by proof of a deed or deeds to one's self and possession in one's self or the grantor or devisor, or of his predecessor in title. 9 Ruling Case Law, title "Ejectment," p. 843, § 15. See, also, note to Cottrell v. Pickering, 10 L. R. A. (N. S.) 404, and note to Dodge v. Irvington Land Co., 22 L. R. A. (N. S.) 1100. Complainant unquestionably has color of title. Sedgwick & Wait on Trial of Title to Land (2d Ed.) § 762.
Partition, generally speaking, may be had in equity of any class of property or of any rights held in cotenancy. 30 Cyc. title "Partition," p. 153.
Where lands sought to be partitioned are vacant, actual possession is not necessary if the applicant is the holder of the legal title. 21 American & English Encyc. of Law (2d Ed.) p. 1149, subtitle "Vacant Lands."
The reason for the rule requiring that an applicant for partition must show title, so far as courts of equity are concerned, is that the court will not make a futile decree, nor will it assist in embarrassing titles. A decree in partition does not settle the title nor does it bind others than those parties to the litigation or those holding under them or whom they represent in some manner. 20 Ruling Case Law, title "Partition," § 58, p. 787.
There is nothing to prevent complainant's immediate entry upon the lands so far as they may be entered upon. Under the circumstances I think he is entitled to partition in this court.
The master also reports that the description is too indefinite. It is generally held that the description must be sufficiently particular to actually identify the property upon which the decree is intended to operate. 17 American & English Encyc. of Law (1st Ed.) p. 733; 30 Cyc. title "Partition," p. 218, subd. 10. The description is indefinite. Counsel for exceptants agrees to have a survey and procure a more accurate description.
The matter will be re-referred to the special master so that he may take such addi tional evidence as may be offered before him with respect to the description of the property and with respect to what steps complainant may take to actually take possession of the land, and he is then to report the rights and interests of the respective parties as he was directed to by the prior order of reference. His report is to be in line with this opinion.
Unless the rights held by the parties to this litigation are partitionable in equity, it would appear that the parties are remediless. They cannot maintain ejectment or trespass. It is difficult to conceive how a suit to quiet title, in the present state of the law at least, can be maintained. Whatever difficulty the purchaser at the sale may have with respect to his title is a matter with which this court has no concern at this time. I am quite convinced that the rights of the parties may be partitioned in equity.