Country Homes Land Co. v. DeGray

1. On a partition bill, if it appear that complainant’s title is disputed by a co-tenant, and that the objection made is not illusory, he will be required, to establish it at law before he can proceed to a-decree in equity. The bill will, in general, be retained until he does so. 2. An easement works no dispossession of the owner. 3. Under the act to quiet titles, the possession essential to the jurisdiction of equity is actual as contradistinguished from constructive possession. The possession of a tenant in common 'in actual possession, claiming in hostility to the complainant,, another tenant in common, whose title is, in part only, denied, is not, for the purposes of this act, the possession of such other tenant.

On appeal from a decree of the court of chancery, advised by Vice-Chancellor Stevens, who filed the following conclusions on the hearing of the canse and' on the application'for a rehearing: By-his will, admitted to probate on April 17th, 1891, Richard T. DeGray deviséd’ as follows: • “All that lot of land and the buildings, erections, structures, machinery thereon and the appurtenances thereto belonging, which I have called the mill, pond and mill lot, * * * and which property is now leased to or held by the Paterson Silk Dyeing and Finishing Company or Mr. Claude' Greppo, I give, devise and bequeath to my son' Wm. M. DeGray, my son Bichard DeGray, and my grandson, Bichard D. Dater, absolutely and in equal shares, together with the said lease or leases, the reversions thereof and the rentals that may become due thereon after my death, and the benefits of the covenants thereof, subject, of course, to the said lease or leases and the covenants thereof; but I direct, and this devise to my said sons and grandson is subject to this express condition—that said property shall not be subject to partition, or be sold by my said children and grandchild, the devisees thereof, or any of them, until the expiration or sooner determination of the said lease or leases, and then shall only be sold at private auction to and among my said three devisees to the highest bidder of them (in case of the death of a devisee, his heirs-at-law or devisees of realty shall exercise his right to bid), and upon such auction and sale my executors, or the others, or survivors of them, as the case may be, shall execute a conveyance thereof in fee to such highest bidder.” Richard D. Dater died before the testator and left the two defendants Frederick II. Dater and William D. Dater. The lease mentioned in the will gave a term of ten years to the Paterson Silk Dyeing and Finishing Company, commencing on May 1st, 1890. The testator died on April 6th, 1891. On September 11th, 1903, Frederick H. Dater, being then of age, entered into an agreement to sell the above-mentioned lot and oilier property to the complainant. The agreement referred to the above-mentioned will, and required Dater, inter alia, at the option of the vendee, to call for a private auction; to bid for the property in accordance with its provisions, and to execute further conveyances. On October 6th, 1903, Frederick H. Dater executed to complainant a deed for (inter alia) an undivided one-sixth interest in the property in question. Complainant thereupon commenced this partition suit. lie afterwards amended the bill by inserting in its third paragraph a clause to the effect that since its purchase “it has been and is now in the peaceable possession of the equal, undivided one-sixth interest and estate in fee-simple absolute in said tract of land and premises.” On this allegation it prayed for a decree removing the cloud created by the provisions of the above devise, as well as for a decree in partition. The question is whether the complainant is entitled to partition until a- court of law has passed upon its title. The complainant claims that the devise to Richard Dater was absolute and in law unconditioned, the restraint upon alienation being, as lie insists, void. The defendant contends that the .restraint is valid, being only a partial restraint, both as it respects persons and modes of alienation and being limited in point of lime. It is entirely settled that if title to land is in dispute, and the validity or non-validity of the title claimed must be determined _ by the application of legal as contradistinguished from equitable rules, the complainant will be required to establish it at law before he can proceed here, but this court will, in general, retain the bill until he does so. Vreeland v. Vreeland, Jfi' N. J. Bq. (J¡. Dick.) 38Sj Blockbower v. Eanouse,S\0 N. J. Bq. {5 Dick.) ^81. The rule itself is not disputed, but it is said that if the court Can see that there is no valid objection to the title—that the objection made is an illusory one'—it may proceed to decree partition. This is doubtless true. There must be a real question, to be determined by a court of law, if the complainant is to be required to go there. ' But there is such a question here. Counsel differ both as to the proper construction of the clause in question and as to the law. Complainant’s counsel says that the clause restrains a sale by all three devisees together, and not a transfer of his interest by one of the devisees to an outsider. Defendants’ counsel says it restrains a sale in tota, and this latter view would seem to be more in accordance with testator’s intention. I am certainly unable to say that complainant’s construction is so clear that there can be no fair doubt about it. Again, the restraint appears to be limited in point of time. It would seem not to extend beyond the period of three lives in being. If it does, it does not obviously do so. This raises the question whethersa general restraint, limited to a period of less than ten years, and a partial restraint, limited to a period not exceeding three lives in being, is contrary to the public policy of this state, and this question, it is admitted, has not been passed upon. Furthermore, the partial restraint thus limited in time is also limited in respect to the mode of sale, viz., private auction, and of the persons who may bu3q viz., the three devisees and their heirs. The question is whether the sale may be legally limited to a class of persons less than the whole number of possible buyers, and if so, whether the class here specified -is too narrow. The very elaborate and exhaustive briefs of counsel prove, almost to the point of demonstration, that these questions are not to be solved off-hand; that no decree can be made without a very care=ful consideration of them. In Doe v. Pearson, the silk dyeing company with that devised by the eleventh paragraph of Richard DeGray’s will. It seems to me quite clear that the plots are not identical. The lease, in terms, demises two- and seventy-five hundredths acres. The will gives thirteen and fifty-two hundredths acres, of which the two and seventy-five hundredths acres are a parcel; both parcels of land are described by metes and bounds, and those metes and bounds are wholly different. There is not the slightest difficulty in plotting them on the ground. It is true that the will inaccurately states that the plot devised is “now leased to- or held by” the silk dyeing company, but this is a manifest mistake—a case for the application of the maxim falsa demonstratió non nocel. Evens v. Griscom, J/2 ÍV. J. Law (IS TV.) 579. It would not be for the interest of either side to contend otherwise. It is clear that this falsa demonslraiio has no effect whatever upon the leasehold interest granted several years previously. Now, just at this point comes in the fallacy which, as it seems to me, pervades the whole of the argument. The tenant, it is said, has attorned to complainant for an undivided one-sixth of the land because it has paid one-sixth of the rents. Possession of the rents, even against protest, is equivalent, it is said, to actual peaceable possession of the land. Being in such peaceable possession, complainant cannot therefore bring ejectment. Conceding this argument to be sound as to the demised land, it obviously must be limited to that which is demised. This is so plain that counsel is forced to contend that the lessor in fact demised the whole of the thirteen and fifty-two hundredths acres, although he in terms demised only two and seventy-five hundredths acres. His specific contention is that because the lessor gave, certain easements in that part of the thirteen and fifty-two hundredths acres not in terms demised, and particularly an easement in the water lying on and flowing through the larger tract, he really demised the whole. The eases that he cites prove just the opposite. Thus, in Perrine v. Bergen, 1N. J. Law (3 Gr.) 855, Justice Ford says: “Even an easement works no dispossession of the owner. The possession still remains in him, as much as if the easement did not exist.” And in Burnet v. Grane, 56 N. J. Lanv (37 Vr.) 385, an ejectment suit, the chancellor, speaking for the court of errors and appeals, says: “The right to a fee and the right to an easement in tire same estate are rights independent of each other and may well subsist together ivhen vested, in different persons. Each can maintain an action to vindicate and establish his right,” &c. This last case is conclusive authority on the point that ejectment may be brought notwithstanding the existence of an easement. Now, I am quite unable to find in the lease anything that gives more than an easement in so much, of the entire tract as is not the subject of specific demise. This being so, I do not see why ejectment may not be brought in respect of the land not included in the demise. The Practice act makes provision for the case of a person suing for an undivided part. If complainant sues for an undivided one-sixth of the land not demised and is able to prove his title to it, he will have judgment. Section 24 of the Ejectment act requires the defendant, if he denies ouster, to admit the right of the ■-plaintiff to an undivided share, stating what- share. If the admission is made in terms satisfactory to the plaintiff, he attains the object of his suit and may then proceed with his case here. If the admission is only of a less interest than plaintiff claims, the case will be tried at law and the court of law will determine the amount of the interest. “The plaintiff,” says Justice Haines, in Brown v. Combs, 129 N. J. Law (i5 Dutch.) 3&, 'Lk~, “can only recover such part of the premises as his proofs have shown him entitled to, and if it ■appears that he is entitled to an undivided part, he shall have verdict and judgment for such part.” But the complainant says, further: We are in possession for the reason that the defendants are in possession. The possession of one tenant in common is the possession of all. Being in possession, we cannot bring ejectment. If possession always followed the title, then ejectment would not be possible as between tenants in common'—a proposition, of course, untenable. The fact in this case is undeniable that aside from its constructive possession of that part which has been under lease the complainant has had no possession in fact. Actual possession is essential to the jurisdiction under the act to quiet titles. Said Justice Depue, in Sheppard v. Nixon, LB N. J. Eq. (16 Stew.) 63“Under this statute, possession in fact, as distinguished from that constructive possession which in ejectment suits arises in virtue of the legal title, is essential to the jurisdiction of the court.” And, further on, he says: “The defendant having in his answer made denial of possession by complainant, it was incumbent on complainant to establish that fact by proof.” Here the complainant has not attempted to establish possession in fact of the part not demised. It has not been in the joint occupation of the land and it has not participated in the issues of it. The proofs, if they show anything, show that defendants have, as far as lay in their power, excluded complainant from the possession and refused in any way to recognize its title. Under these circumstances it seems to me that for this court to assume jurisdiction would be to disregard the rule laid down by the court of errors and appeals in Sheppard v. Nixon. As complainant’s title depends upon the proper construction of the will of Richard I. DeGray, and does not appear to hinge on any disputed question of fact, it might be a convenient thing for this court to construe this will, just as it might have been a convenient thing for this court, in the first instance, to have construed the deed in the Pipe Line Case (Pipe Line Co. v. Delaware, Lackawanna and Western Railroad Co., '82 N. J. Law {88 Yr.) 254), but acting, under the well-settled, rule it declined to take jurisdiction until the legal question was first settled. After that was done, it applied the equitable remedy. Delaware, Lackawanna and Western Railroad Co. v. Breckenridge, 5'7 N. J. Bq. {12 Dick.) 154; 58 N. J. Bq. {18 Dick.) 581. No distinction has been taken in this state between questions of construction of documents and questions of fact in dispute. The court of errors and appeals-has very recently applied the rule to partition cases {Slockbower v. Kanoúse, 50 N. J. Bq. {5 Dick.) 481, and the chancellor, in a still later case {Hanneman v. Richter, 88 N. J. Bq. {17 Dick.) 886), had under consideration a partition depending upon the construction of a will. I am at a loss to see why the cases cited do not apply to this case. If I am wrong in my conclusions, the court of review will have before it all the facts and can finally dispose of the whole matter.