On appeal from the Supreme Court.
For the appellant, Edmund A. Hayes.
For the respondent, Meehan & Waltzinger.
The opinion of the court was delivered by
WALKER, CHANCELLOR. This was an action of ejectment in the Supreme Court, Ocean Circuit. The case was tried before Circuit Court Judge Lawrence and a jury. Plaintiff demanded possession of certain land described in the pleadings, and also mesne profits and damages. The jury rendered a verdict for the plaintiff and against the defendant for possession of the premises and for mesne profits and damages; whereupon judgment was duly entered upon the verdict, and defendant appeals to this court from the whole of the judgment and assigns eight grounds of appeal: (1) The trial judge refused the motion on behalf of the defendant to nonsuit the plaintiff at the conclusion of its testimony; (8) Because the said trial judge refused the motion to direct the jury to return a verdict in favor of the defendant and against the plaintiff. The intervening grounds, 2, 3, 4, 5, 6 and 7, concern admission of testimony.
On October 29th, 1907, Isaac H. Tilton conveyed certain premises to the Ocean County National Bank and in the deed therefor reservation was made of the lands lying north of Saw Mill creek. On November 16th, 1923, the Ocean County National Bank conveyed certain of the premises to Lena Hulse, and in addition to the reservation of the land lying north of Saw Mill creek made the following reservation also:
"Reserving Saw Mill Creek and fifty feet of the land in width on the south side of the entire length of said tract."
The defendant, Beverly Beach, Incorporated, on January 31st, 1928, purchased from Lena Hulse a portion of the lands which were acquired by her from the Ocean County National Bank, and afterwards entered thereon. On June 28th, 1926, the Ocean County National Bank conveyed to Walter B. Pearce the premises along the southerly side of Saw Mill creek, fifty feet in width; and on July 11th, 1927, Walter B. Pearce and wife conveyed to Franklin K. Pearce Company,
plaintiff-respondent, the same premises conveyed to Walter B. Pearce by the deed of June 28th, 1926.
At the time the Ocean County National Bank conveyed to Lena Hulse it is said that it did not own any land south of the entire length of the tract described in its deed to her, and, if so, the reservation of the fifty feet would be a legal nullity, if it were to be located as actually described in the reservation; but the plaintiff claimed that the bank intended to reserve fifty feet of land in width on the south side of the entire length of the creek, and which is evidenced by its conveyance of fifty feet along the southerly side of the entire length of Saw Mill creek to Walter B. Pearce, June 28th, 1926, and if so, the diamond-shaped tract being carved out of the parcel, was on the south side of the creek.
So, therefore, the question was as to what was really meant to be reserved, which gave rise to a doubt upon facts not appearing on the face of the deed itself, and required the intervention of the jurors to ascertain and settle just what was intended; and whether the strip of land in question was within that reservation.
The plaintiff company, standing upon its deed of July 11th, 1927, brought this suit to recover possession from defendant, Beverly Beach, Incorporated, grantee of Lena Hulse, of a strip of land in Brick township, Ocean county, described in the complaint and referred to as a diamond-shaped tract containing approximately one-tenth of an acre. If the parties intended to reserve Saw Mill creek (and there is no dispute about that), and fifty feet immediately contiguous to the south following the various meanderings of the creek to its mouth, for a width of fifty feet, then the plaintiff was entitled to recover ...