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June 26, 1945

MORRIS & E.R. CO. et al.

The opinion of the court was delivered by: FAKE


This stipulation entered into this 16th day of May, 1945, between Haines & Chanalis (by Patrick J. Maloney), representing the plaintiff, and John A. Laird, representing the defendants, is entered into to assist the Court in determining the issue of whether or not upon the admitted facts a tenancy in common exists between the parties.

 It is stipulated that neither the plaintiff nor her predecessor in title, Sarah E. Ryerson, claim any actual physical possession of the premises in dispute.

 Plaintiff's claim of title derives from a deed dated March 19, 1872, by Jonathan Dixon, Jr., one of the Masters of the Court of Chancery of New Jersey, under a sale in partition of the property of one Joseph Danielson.

 Danielson's title derives from deed of Selah Hill, dated August 2, 1852, recorded October 18, 1872 in Book 249, p. 66.

 Selah Hill's title derives from the deed of Lorenza Jacquins, Sheriff, dated April 9, 1850, recorded in Book 15, p. 652, the Sheriff's deed having been executed as the result of the foreclosure of a mortgage made by one Philip Smith to the Trustees of the Inhabitants of Township of Bergen, dated November 26, 1831. The premises in dispute (11.62 acres) were not mentioned in the bill filed to foreclose this mortgage, and it is accordingly stipulated that Hill had no legal title to convey to Danielson.

 The parties further stipulate that the deed from Jonathan Dixon, Jr., ran to Sarah E. Ryerson and Theodore F. Merseles and that plaintiff, Jessie L. Ryerson, is the administratrix of the estate of Sarah E. Ryerson, deceased, and her heir-at-law. By deed dated June 3, 1876, recorded Book 299, p. 133, Merseles conveyed his undivided one-half interest to John P. Sunderland, and that by deed dated July 3, 1879, recorded Book 334, p. 66, Sunderland conveyed said one-half interest to Oscar O. Shackelton and that Shackelton, by deed dated March 31, 1883, recorded in Book 378, at p. 205, conveyed said undivided one-half interest to Julia F. Sunderland.By deed dated June 15, 1883, recorded Book 381, p. 208, John P. Sunderland and Julia F. Sunderland, executed a blanket deed to Morris and Essex Railroad Company, conveying a tract of land described as follows: 'All those lands lying together in the Township of North Bergen, County of Hudson and State of New Jersey, being part of the Secaucus Patent, lying and being between the following general boundaries; on the north by Division Ditch; on the east by a tract of 11 acres and 80/100, contained in two deeds from John P. Sunderland and wife to Charles Siedler, and dated July 3, 1879, and the other dated May 20, 1880; on the south by the middle of Division Creek, and on the west by three tracts now or lately of Moses Taylor, and one tract now or formerly of the heirs of Abraham Sanier and a ditch or neck from the Sanier tract to Division Creek, being all of the lands lying within and between the said general boundaries and contained about 46 acres more or less.'

 The plaintiff claims that this description embraces the locus in quo, and the parties agree that Julia F. Sunderland never expressly conveyed 'an undivided one-half interest' in the locus in quo to the Morris & Essex Railroad; but whatever interest she may have acquired by her deed from Shackelton (Book 378, p. 205) was subsequently conveyed to the Morris & Essex Railroad Company, in 1898, by blanket deed (Book 697, p. 533).

 The parties further stipulate and agree that the locus in quo, a tract of 11.62 acres, was, so far as the ascertainable records disclose, first conveyed by Philip R. Earle, guardian, to Philip Smith, by deed dated August 13, 1813, recorded in Book T 4, p. 333; that Philip Smith mortgage said premises (among other tracts) to the Trustees of the Inhabitants of the Township of Bergen, and that, as hereinabove stipulated, said tract was not foreclosed.

 The parties further stipulate that by deed dated August 14, 1879, recorded Book 371, at p. 483, Morris Smith and others, described as 'the surviving children and heirs-at-law of Philip Smith, deceased', conveyed a tract of 11.62 acres by metes and bounds description and using the same general courses used in the deed of Dixon to Ryerson and Merseles through which the plaintiff claims, to Julia F. Sunderland, and that by deed dated May 2, 1883, recorded in Book 378 at p. 421, Julia F. Sunderland by this same description conveyed this 11.62 acre tract to the Morris and Essex Railroad Company.

 The parties further stipulate that a search of the records indicates a number of other conveyances into the Sunderlands (and out of the Sunderlands to the Morris & Essex Railroad Company) of various other tracts in the neighborhood and on May 16, 1898, Julia F. Bunker (formerly Julia F. Sunderland) and others executed an all-inclusive deed to the Morris & Essex Railroad Company embracing all lands in the County of Hudson over which any railroad of the Morris & Essex runs or within one mile thereof, which deed is recorded in Book 697 page 533.

 The parties to this stipulation waive a trial by jury on the question of whether or not the paper title, as herein stipulated, discloses a tenancy in common between the parties, and agree that should the Court find that tenancy in common does not exist, that such determination will be dispositive against plaintiff's right of recovery in this litigation and will be a final disposition of the controversy so as to be the subject of an appeal to the Circuit Court of Appeals.

 A trial by jury is waived only to the extent of having the Court determine on this stipulation the ...

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