Opinion
03-23-1905
WHITE et al. v. SMITH et al.
L. G. Morton, for demurrants. C. L. Cole, for complainants.
Bill for partition by Josiah White and others against Ella Etta Smith and others. On bill, plea, and. stipulated facts. Plea overruled.
See 58 Atl. 817.
The bill of complaint in this cause is filed for the partition or sale of a tract of land situate in the borough of Pleasantville, in the county of Atlantic, known as the "Capt. Samuel W. Weaver Farm," containing 95 acres, more or less. The complainants allege that they are jointly owners of an equal undivided one-third part of the premises. They make defendants Ella Etta Smith, who, they allege, is entitled to an equal undivided third part thereof, subject to the curtesy of her husband, Rufus Smith, and George H. Weaver and Josephine Maude Lake (formerly Weaver), who, the complainants aver, are each seised of, and entitled to, an undivided one-sixth part of said premises; the share of said Josephine being subject to the right of curtesy of Frank Lake, her husband. The bill has the usual prayers for answer and for relief by partition or sale of the premises, etc., but omits to present any prayer for process against the defendants. The defendants Ella Etta Smith and Rufus Smith, by their solicitor, have entered a general appearance in the cause. They have also filed their joint and several plea to the bill of complaint. By this plea the defendants Ella Etta Smith and Rufus Smith, her husband, plead in bar to the whole bill that the complainants are not either jointly or severally owners of an equal undivided one-third part of the premises mentioned and described in the bill of complaint, or of any other share of said premises; that the complainants are not, jointly or severally, coparceners, joint tenants, or tenants in common in the lands and premises described in the bill of complaint; and that they are not seised of any estate whatsoever in the same, whereby they can. under the laws of this state, under the rules and practice of this court, ask for a partition of said lands, or any alternative relief such as is prayed for in their bill of complaint. A replication was filed by the complainants, joining issue on the above plea. After issue had been joined on the plea, the parties, by their solicitors, entered into the following stipulation, which was filed in the cause:
"It is hereby stipulated and agreed that the facts put at issue by the pleading in this case are as follows:
"(1) That the lands sought to be partitioned under the bill of complaint in this cause were owned in fee simple by Samuel W. Weaver, and at his death, which occurred on January 8, 1872, under the provisions of his will, the same descended to his widow, Josephine T. Weaver, one-third; Theodore S. Weaver, two-ninths; Alphonso W. Weaver, two-ninths; and Ella Etta Weaver, two-ninths.
"(2) That Theodore S. Weaver died Intestate in November, 1892, leaving, him surviving, as his only heirs at law, two children, Josephine Maude Lake (née Weaver), wife of Frank Lake, and George H. Weaver.
"(3) That Alphonso W. Weaver died in April, 1888, unmarried and without issue.
"(4) That Ella Etta Weaver married Rufus Smith on July 1, 1884.
"(5) That on September 20, 1897, Josephine T. Weaver executed a paper writing wherein and whereby she leased the entire of the premises in question to the complainants at a stated rental, giving them the option to purchase said premises at the sum of eight thousand dollars at any time during the continuance of such lease; that this option was duly exercised by the complainants, but the said Josephine T. Weaver was unable to comply, and did not comply, with the conditions of said paper writing or agreement so made by her with the complainants.
"(6) That thereupon the complainants filed their bill of complaint in this court, praying that the said Josephine T. Weaver be compelled by a decree of this honorable court to specifically perform said contract, and such proceedings were had thereafter and therein that on the ——— day of ———, in the year nineteen hundred and four, a decree was made in this honorable court requiring and decreeing the said Josephine T. Weaver to convey unto the complainants her undivided one-third interest in said lands upon the complainants paying to her one-third of eight thousand dollars, the price at which she had agreed to convey the entire of said premises to complainants;
"(7) That said Josephine T. Weaver duly appealed from said decree of this court to the New Jersey Court of Errors and Appeals,and that said appeal was noticed for argument at the June term, 1904, of that court, but was not reached in time to be argued or disposed of at that time.
"(8) That said appeal has not as yet been determined, is still pending, and has been duly noticed for argument at the November term, 1904, of said Court of Errors and Appeals.
"(9) That the only title which the complainants claim to have in the lands in question is such title as is vested in them by virtue of the said decree in chancery made on the —— day of ——, aforesaid, and that they do not claim title by virtue of any other instrument or thing whatsoever.
"(10) That, at the time of the filing of the bill of complaint herein, Ella Etta Smith, one of the defendants, was seised of, and entitled to, an equal undivided one-third interest in said lands and premises; the remaining one-third interest being held by Josephine Maude Lake and George H. Weaver, as heirs at law of Theodore S. Weaver, now deceased.
"(11) That, upon the facts above stated, this court may hear and determine the question as to whether the complainants have any standing in this court unless under their said bill of complaint, and whether they have a right at this time to pray for and have a decree for the partition of said lands and premises, and such other relief as prayed for by them therein.
"Thompson & Cole,
"Solicitors of Complainants. "Louis G. Morton,
"Solicitor of Defendants Ella Etta Smith and Husband."
The cause has been set down for hearing on the issue joined on the plea. No testimony has been offered in support of the plea, other than the facts agreed upon in the stipulation.
L. G. Morton, for demurrants. C. L. Cole, for complainants.
GREY, V. C. The defendants' counsel presents on this hearing criticisms of the bill of complaint aliunde the matters set up in the plea. He objects to the bill of complaint because it contains no prayer for process against the defendants. If such objection were open to defendants who have filed a general appearance to the bill of complaint, it certainly is not within the matters which may be considered under the issues joined on the above plea.
The defendant, in argument, further criticises the sufficiency of the averments of the bill in its definition of the estate of the complainants in the premises sought to be partitioned or sold. The bill alleges that the complainants "are jointly owners of an equal undivided one-third part," etc., of the premises, etc. The defendants contend that this allegation omits to define any estate in the premises, such as tenancy in common, coparceny, or a joint tenancy, under which the complainants might ask their partition. But this, also, if it is of significance, in view of the several allegations of the bill which clearly show that the complainants' claim to own a named undivided interest in the lands in question, and charge that the defendants hold the residue thereof, is a mere matter appearing on the face of the bill, open to challenge by demurrer, and not by plea, and not presented by the issues raised on the plea now under consideration.
The defendants also contend in argument that it appears by the stipulated facts that the title of the complainants to any share in the premises is in dispute in this court in another suit, maintained by the complainants, to compel a conveyance to them of an undivided third part of the premises; that, although a decree has been pronounced in that suit directing a conveyance of that undivided one-third part to the complainant, yet an appeal has been taken to the Court of Appeals, and that, until that court has delivered the appeal, the complainants' title is still in dispute; and that no bill for partition can be filed by a complainant whose title is in dispute. I am referred to the following cases as supporting this contention: De Witt v. Ackerman, 17 N. J. Eq. 215; Lucas v. King, 10 N. J. Eq. 277; Vreeland v. Vreeland, 49 N. J. Eq. 322; Slockbower v. Kanouse, 49 N. J. Eq. 592, 26 Atl. 333. This argument is confronted by the same difficulty as those already disposed of. The question which can be presently considered on this hearing is not the advisability of permitting this suit to proceed to a partition or sale while the complainants' decree is under appeal and undetermined. All that can now be heard or determined is the Issue joined on the defendants' plea, and that is whether the defendants have proven what they have in that plea alleged to be the truth, namely, that the complainants are not, in fact, seised of any estate whatsoever in the farm in question which entitled them to ask this court to partition or sell it. A cursory examination of the above-cited decisions will show that the existence of a dispute touching the title of the complainants to lands which they seek to divide does not deprive this court of its jurisdiction to entertain a suit begun by such a complainant for the partition or sale of those lands. Such a condition of affairs would, when properly presented, show good reason why the partition suit in this court, if the dispute affected an asserted legal title, should be delayed until that dispute should be determined in a law court. But if the title, as disputed, asserts an equitable interest, there is no occasion to send it for determination to a law court, for in that forum the equitable estate would not be recognized. Such case would be retained and decided here. The bare denial of the complainants' title is no obstacle to the entertainment of the suit Lucas v. King, 10 N. J. Eq. 280The general rule as declared by the Court of Appeals in Vreeland v. Vreeland, ubi supra, is that, if the title to land is disputed, the right must be established at law, and the bill may be retained until it is settled. The opinion of the Court of Appeals in the case of Slockbower v. Kanouse, 49 N. J. Eq. 592, 26 Atl. 333, is not adverse to this view. In that case the decree was reversed because the disputed title, which involved a boundary line—a purely legal question—was passed upon by the Vice Chancellor. 48 N. J. Eq. 42, 21 Atl. 197. His decree was reversed, but the bill of complaint was not dismissed, as would have been the case if the Court of Appeals had been of opinion that this court had no jurisdiction over such a subject-matter. It is not to be assumed that this court will permit the complainants to have a partition or sale of the lands in question before the appeal in the other suit regarding the complainants' title has been determined. If any step in this cause would, in effect, defeat or interfere with the operation of a judgment yet to be pronounced by the Court of Appeals, it would be good ground for delaying the taking of that step until after the judgment of the Court of Appeals shall have been delivered. But no such suggestion is made by the plea here under consideration. The only point there made is that the complainants have no estate which entitled them to bring this suit. On this question the stipulation presents the only evidence. It shows a chain of title which ends in the recital of a decree of this court in a suit for specific performance, wherein the owner in fee of an undivided one-third part of the premises in question was decreed to convey them to the complainants. The facts recited show that the complainants had by contract an equitable estate, which has become a legal one by the operation of the decree and the statute (P. L. 1902, p. 525, § 45). They are, therefore, contrary to the allegation of the plea, jointly the owners of an equal undivided one-third part of the premises in question, and entitled to file a bill for partition. The appeal in the specific performance suit has not vacated that decree of this court. It still stands as a judgment until either reversed or changed by any affirmative action of the Court of Appeals evidenced by the entry in that court of a reversing or modifying decree.
The defendant has failed to sustain by proof the issue raised by the plea, and it must be overruled, with costs.