Opinion
No. 39/650.
06-20-1916
NEW JERSEY TITLE & REALTY CO. v. BOWYER et al.
Wilfred B. Wolcott and Charles S. King, both of Camden, for complainant. Bleakly & Stockwell and Marter & Rose, all of Camden, for defendants.
Supplemental Opinion, July 21, 1916.
Suit between the New Jersey Title & Realty Company and Charles P. Bowyer and others. Decree directed in accordance with the opinion.
Wilfred B. Wolcott and Charles S. King, both of Camden, for complainant. Bleakly & Stockwell and Marter & Rose, all of Camden, for defendants.
LEAMING, V. C. (orally). I think I will take briefs. I do not feel quite clear on all aspects of the case. My view at this time is that there can be no adverse holding superior to or inconsistent with the obvious purpose and intent of the holding. My present notion is that every holding must be measured in its effect by its real intent and purpose, and that it will not be given a greater effect than that intended by the person holding; that Mrs. Coombs at no time held, at least at no time prior to the sheriff's sale held, possession of any part of either lots 229 or 231 adversely to the fee in any adequate sense of an adverse holding. The rooms which she occupied could not be used without also using that part of the rooms that extended over the boundary line between the two lots; but she held all that she held under and by authority of the trustees of the will, one of whom was owner of the fee of lot 231. It was the aim and purpose of these two men who were acting as trustees under the will to place her in the enjoyment of the benefits conferred by the will, and she accepted those benefits by holding under them and in no sense as holding adversely or in the remotest degree hostile to the rights of them, or either of them, as trustee or individuals. Aside from the testimony of Mr. Bowyer it seems clear that she never occupied the part of the property extending beyond the dividing line of the two lots with the remotest conception or purpose upon her part to occupy it except under and by reason of Mr. Bowyer's permission for her to do so. Such a holding would not be a holding that could ever ripen into an absolute estate, because it was never a holding as an absolute estate, or a holding under claim of paramount right. My present views may be wrong, and I think I should have the authorities before me on the subject. I suggest, therefore, that the complainant file a brief, embodying the authorities relied upon by it, and especially upon that branch of the case to which I have referred, and serve it on the other side within a week, then the defendants may take the same length of time to answer the brief, and complainant may have a few days to reply. I will then take the matter up for further consideration.
Supplemental Opinion.
If the testimony of Mrs. Coombs be accepted as accurately describing the nature of her possession it is impossible to escape the conclusion that she held possession of the projecting offset in precisely the same claim of right that she held the other part of the property. The codicil of her father's will gave 229 Market street to her brothers Charles P. Bowyer and John Bowyer in trust to collect the rents therefrom and pay the income to her during her lifetime, with remainder to her daughter at her decease. At her father's decease 229 Market street, together with the offset, was in the possession of a tenant. Instead of continuing to rent and pay to Mrs. Coombs the income the trustees gave to her as its equivalent the enjoyment of occupancy without rent. In such circumstances she clearly occupied by right of the will of her father and under authority of the trustees. Her holding was neither under claim of any right independent of that conferred by the will nor inconsistent with what she believed to be the right conferred by the will, if her testimony affords an accurate statement of the facts. Her testimony clearly excludes any notion that she held that part of the property within the boundaries of lot 229 by reason of the rights conferred upon her by the will and held the projecting offset by any other or differeut right or claim of right. Her testimony impels the conclusion that she understood her entire occupancy as the enjoyment of a life right conferred by the will.
If the testimony of Mr. Bowyer is accurate she was permitted by him to enjoy the offset as his tenant at will under an express engagement upon her part to surrender that holding at his pleasure. If that testimony is accurate, it is obvious that no adverse possessioncould run against him without some conduct upon her part adequate to apprise him of a claim of right inconsistent with a holding under him. There is no evidence of any change of the nature or purpose of her possession prior to the sheriff's sale.
But, disregarding Mr. Bowyer's testimony of express engagements and assuming, as it must be assumed from Mrs. Coombs' testimony, that she held all that she held under authority of the trustees and for the purpose on her part of enjoying, and with the intent upon her part of enjoying, and with the belief that she was enjoying by her possession, the rights conferred upon her under the will, namely, a life enjoyment of the property which she occupied, the single question presented is that suggested at the hearing: Whether such holding when continued for a period of 20 years could ripen into a fee.
I think this inquiry necessarily answers itself. A possession cannot be adverse to a title to which it is intended to be subservient. If in fact a property is occupied under a claim of right which is subservient to the fee, the possession is consistent with, rather than adverse to, the fee. Occupancy admittedly as a life tenant is necessarily in recognition of a reversion at the death of the life tenant. It is not the mere fact of possession, but the adverse claim of right, which ripens into a title; otherwise the possession of any life or term tenant would ripen into a title. Mrs. Coombs, has at no time prior to the sheriff's sale, in the slightest degree, modified her original status as one enjoying what she believed to be a life right conferred upon her by the will; and, although she enjoyed a part of a property in which the will gave her no right, she did not enjoy it adversely to the fee, because she clearly intended no such adverse enjoyment. The difference between taking possession of land through a mistaken claim of right to an absolute title and taking possession through a mistaken claim of right of enjoyment of a subservient estate is the difference between possession adverse and not adverse to the fee. In defining what constitutes adverse possession the following is stated in 1 Am. & Eng. Enc. Law, 789:
"In order to constitute an effective adverse possession there must be an ouster of the real owner, followed by an actual, notorious, and continuous possession by the adverse claimant, with an intention on his part to claim in hostility to the title of the real owner. The intention with which possession is taken or held is regarded as a controlling factor in determining whether or not it is adverse. There must be an intention to claim the title as owner, and in derogation of the rights of the true owner."
Colgan v. Pellens, 48 N. J. Law, 27, 2 Atl. 633, and 2 C. J. 129, are cited as inconsistent to the rule above stated, but I find no such inconsistency.
I will advise a decree in accordance with the views here expressed.