On appeal from the Supreme Court.
For the appellant, Babcock & Champion.
For the respondent, Robert J. Tait Paul.
The opinion of the court was delivered by
BODINE, J. Annie M. Conaway brought ejectment for a tract of land at the corner of Kentucky and Baltic avenues in Atlantic City. The trial judge directed a verdict for the plaintiff.
Mrs. Conaway claims an undivided one-fourth interest in the premises, asserting that she is a granddaughter of Emma L. Schafer, who took title May 26th, 1888. Mrs. Conaway was born June 4th, 1889, at Atlantic City, her mother, a daughter of Mrs. Schafer, died shortly thereafter and many years before Mrs. Schafer's death.
Mrs. Schafer died intestate November 14th, 1897, seized of this and other property. After her death, three of her children conveyed the premises in question to their father, John G. Schafer. This deed is dated December 29th, 1898. On November 29th, 1899, John G. Schafer conveyed the premises to Joseph L. Roth, from whom the defendant claims. Roth testified he took possession of the premises under an agreement to purchase from the Schafers. He seems to have remained in possession under the agreement and under the conveyance made to him until he conveyed the premises in 1902 to Thomas Daly. The Dalys have since been in possession. Roth filled in the premises, built sidewalks and rented the premises and otherwise exercised ownership from the time of the agreement of purchase. He paid for the property $5,800. At the time of his agreement to purchase, the rents amounted to about $10 a month. John G. Schafer took back a purchase-money mortgage from Roth.
A partition proceeding between the same parties instituted in the Court of Chancery was stayed pending the trial of this action. We apprehend that ejectment lies under the facts of this case. Foulke v. Bond, 41 N.J.L. 527.
The trial court was in error in directing a verdict for the plaintiff, and in concluding that the defendant had not maintained a defense under the statute of 1922 (Pamph. L. 1922, p. 315), which is as follows: "Thirty years' actual possession of any lands, tenements, or other real estate, excepting woodlands or uncultivated tracts and that sixty years' actual possession of any woodlands or uncultivated tracts, uninterruptedly continued by occupancy, descent, conveyance or otherwise, in whatever way or manner such possession might have commenced, or have been continued, shall vest a full and complete right and title in every actual possessor or occupier of such lands * * * and shall be a good and sufficient bar to all claims that may be made, or actions commenced by any person or person or persons whatsoever, for the recovery of any such lands, tenements or other real estate."
An earlier legislative enactment continuously in the laws, in substantially the same form, is section 1 of the act of June 5th, 1787. Gen. Stat., p. 1972. In so far as pertinent, it provides: "That sixty years' actual possession of any lands, &c., uninterruptedly continued by occupancy, descent, conveyance or otherwise; in whatever way or manner such possession might have commenced, or have been continued, shall vest a full and complete right and title in every actual possessor or occupier of such lands, &c., and shall be a good and sufficient bar to all claims that may be made, or actions commenced by any person or persons whatever, for the recovery of any such lands, &c."
Mr. Justice Depue said, in Spottiswoode v. Morris and Essex Railroad Co., 61 N.J.L. 322, 328: "Possession obtained and held as prescribed by the first section of this act will confer a title paramount to the claims or rights of all other persons."
Mr. Justice Washington, in the Circuit Court for the District of New Jersey (Wright v. Scott, Fed. Cas. 18,092), similarly construed the statute, and concluded that actual possession uninterruptedly continued by occupancy ...