Summary
In Beatty v. Lewis (68 A. 95) the New Jersey Court of Chancery considered whether absence from the State suspended the running of a statute barring re-entry upon real estate after twenty years.
Summary of this case from Wollen v. David, Inc.Opinion
10-24-1907
BEATTY v. LEWIS.
Samuel A. Besson, for complainant. Henry W. Runyon, for defendant.
Bill by Robert C. Beatty, trustee, etc., against Vivian M. Lewis, administrator, etc., of Maria McMahon, deceased. Decree for complainant.
Samuel A. Besson, for complainant. Henry W. Runyon, for defendant.
HOWELL, V. C. The bill in this case is filed under the provisions of the act of 1870, relating to the quieting of titles (Gen. St. p. 3486), and the supplement thereto (P. L. 1901, p. 57, c. 30), to quiet the title to a tract of land in Hoboken. The bill contains all the averments required by the statute. Answers were filed setting up tax titles held by the defendants which are claimed to be subsisting incumbrances. The complainant is a trustee appointed by this court to carry out the trust provisions of the will of Abby G. Spring. He succeeded one S. G. Babcock in the office.
Mrs. Spring in her lifetime held a mortgage for $4,000 on the land in question, which was foreclosed by Babcock, trustee. He took title at the sale under a decree for the foreclosure of the mortgage in Novemrer, 1877, and he and his successor in the trust have had title to and actual possession of the land continuously from that time to the present, a period of about 30 years. On June 29, 1878, the premises were sold by the proper officer of the city of Hoboken for unpaid taxes and water rents, aggregating $170.99, and on August 18, 1879, a similar sale was made for arrears of taxes and water rents aggregating $165.43. At these sales the premises were purchased by the defendants, or some of them, for a period of 100 years, to evidence which declarations of sale were issued by the city. These declarations of sale have been assigned to the defendant Maria McMahon, who now claims a lien on the premises in question or title thereto for a term of years by virtue of these documents and the provisions of the city charter. This claim is met by the complainant by using the statute of limitations against rights of entry (Gen. St. p. 1977, § 23), which reads as follows: "No person who now hath or hereafter may have any right or title to entry into any lands, tenements or hereditaments shall make any entry therein but within twenty years next after such right or title shall accrue, and such person shall be barred from any entry afterwards," etc. If this statute applies to the facts in this case, then whatever right of entry the defendant acquired under the declarations of sale in question is barred.
The charter of the city of Hoboken (P. L. 1855, p. 471, § 48), provides that all taxes and assessments which might thereafter be assessed upon any real estate in that city should be and remain a lien thereon until paid, and, if not paid, the council might cause such real estate to be sold at public auction for the shortest term for which any person would agree to take the same and pay such tax or assessment, with costs and charges, and should execute under the seal of the city a declaration of such sale and deliver the same to the purchaser, and that such purchaser, his executors, administrators, or assigns should, by virtue thereof, lawfully hold and enjoy the said real estate for his and their own proper use against the owner and all persons claiming under him until the said term should be completed and ended. But it was provided that the real estate so sold might be redeemed by the owner, mortgagee, occupant, or person interested therein, or by any other person on behalf of the owner, mortgagee, or claimant at any time within two years after the sale by paying to the city treasurer for the use of the purchaser the said purchase money, etc., and that the term of time for which any real estate so sold should not commence, nor should the purchaser or those claiming under him have a right of possession to said real estate until the two-year limit for the redemption of the same should have expired. By an act passed in 1859 (P. L. 1859, p. 433, § 1), water rents and penalties thereon due to the city were placed in the same category with unpaid taxes and assessments. The latest of these sales for arrears of taxes and water rents occurred on August 18, 1879. The time for redemption therefor expired on August 18, 1881, and on that day the defendant's right to take possession of the said real estate became fixed. This right to take possession of the premises is a right of entry, and it is a right of entry of the character referred to in the limitation act above quoted. It will be observed that the complainant's predecessor in title, Babcock, trustee, was in possession of the premises in question at the time these sales took place and at the time the defendant's right of entry accrued. There being no evidence to the contrary, I shall assume that the possession of Babcock and of the complainant as his successor was adverse and hostile to the claim now made by the defendants. The defendants are put by the statute under which this suit is brought in the position of plaintiffs in ejectment. Ward v. Tallman, 65 N. J. Eq. 310, 55 Atl. 225. Such an action would clearly be barred, not only by the statute in question, but also by the following section. The effect of the adverse possession of the complainant and his predecessor in title is shown by the case of Spottiswoode v. Morris & Essex Railroad Company, 61 N. J. Law, 322, 40 Atl. 505, which contains an interpretation of the statute herein above quoted, and holds that by force of that section possession held adversely and uninterrupted for a period of 20 years will confer a title which will support an action of ejectment.
But it is said that this suit will not lie because there is a remedy at law. The suit is of the character of Southmayd v. Elizabeth, 29 N. J. Eq. 203 (affirmed on appeal, 29 N. J. Eq. 650), a case which is of undoubted authority. The cases cited in the defendant's brief have no application to the situation at bar. Bellows v. Wilson, 32 N. J. Eq. 481, was what is known as a certiorari bill. Sheppard v. Nixon, 43 N. J. Eq. 627, 13 Atl. 617, was an ejectment bill; and in Albro v. Dayton, 50 N. J. Eq. 574, 25 Atl. 937, it was held that the act did not apply because the complainant and defendant were jointly in posession of the premises; hence the complainant was not in a situation to avail himself of the statute. Here all the jurisdictional facts are shown by the bill. The proofs fully support these allegations, and I am not shown how the complainant could try the title at law, except in the manner pointed out in the fifth section of the act (Gen. St. p. 3487), a proceeding which has not been invoked by either side.
Again, it is said that the defendants were nonresidents of the state, and hence thestatute of limitations could not run against them. The exception concerning nonresidents does not apply to the section of the statute under consideration. This exception is found in section 8 of our statute. A cursory reading of it will satisfy counsel that it applies only to the classes of cases provided for in preceding sections.
Hence I find that the defenses set up in the answers have failed. There must be a decree for the complainant, with costs.