Opinion
12-07-1903
ELLIS et al. v. FEIST et al.
Edwin R. Walker, for complainants. H. C. Valentine, for defendant Margaret Feist. F. s. Katzenbach and Mr. Hunt, for defendant Mary Feist.
Bill for partition by Theresa Ellis and others against Mary Feist and another. Bill held for the determination of the title in an action at law.
Edwin R. Walker, for complainants.
H. C. Valentine, for defendant Margaret Feist. F. s. Katzenbach and Mr. Hunt, for defendant Mary Feist.
REED, V. C. The complainants are the children or grandchildren of Baptist Feist and his wife, Theresa Rothweiler Feist. The defendants are the widow and child of said Baptist Feist; the widow being Mary, the second wife of Baptist Feist, and the child being the offspring of the second marriage. The contest concerns the title of Baptist Feist at the time of his death, on April 26, 1903. The question arises in this way: The property sought to be partitioned was on September 14, 1864, conveyed by Frederick Wenzel and wife to Theresa Rothweiler. Theresa Rothweiler was then the wife of Baptist Feist, but the name "Feist" was omitted in indicating the grantee in the deed. Theresa Rothweiler died about 1809. On November 15. 1871, Frederick Wenzel, the grantor in the former deed, made another deed for the same property to Baptist Feist. This deed recites that a previous conveyance was made to Theresa Rothweiler, and observes that, as there was no person by that name, and the conveyance is void, this deed (the last-named deed) is given to rectify the error. Now, if the grantee in the first deed was sufficiently described to point out the then wife of Baptist Feist as such grantee, then after her death Feist had an estate by the curtesy, which expired upon his death, and thereafter the property belonged to the heirs of Theresa alone. If the grantee in the first deed could not be identified by the name "Theresa Rothweiler," then the second deed became operative, and upon the death of Baptist Feist the property passed under the terms of his will to his widow and daughter Mary, the child of his second wife Mary. The answers of the widow and child challenge the title of the complainants. This condition of affairs deprives this court of jurisdiction to proceed with this suit until the legal title is settled by an action at law (Slockbower et al. v. Kanouse, 50 N. J. Eq. 481, 26 Atl. 333), unless the right of the complainant or defendant rests upon or involves some equitable question (Vreeland v. Vreeland, 49 N. J. Eq. 322, 24 Atl. 551).
Counsel for the complainants insists that the suit may be retained as one to quiet title and partition. But the radical defect in the bill, as one to quiet title in complainants, is that it does not show that the complainants are in possession. The facts appearing in the testimony, so far as they show anything respecting possession, seem to disclose that Mary and her child are in exclusive possession. An action of ejectment, therefore, is an adequate proceeding to try the title. Sheppard v. Nixon, 43 N. J. Eq. 627-632, 13 Atl. 617.
I will hold the bill a reasonable time for the complainants to have their title determined at law.