On appeal from the Supreme Court.
For the appellants, Joseph V. Fumagalli (Peter Hofstra, of counsel).
For the respondent, Cox & Walburg (William H. D. Cox, of counsel).
The opinion of the court was delivered by
COLLE, J. This is an appeal from a judgment in favor of the Great Notch Corporation entered upon a nonsuit.
The complaint alleged that the plaintiffs were the owners of lands in Pequannock Township in Morris County described by metes and bounds and that the defendant corporation had
excavated sand, stone, soil and gravel therefrom without permission and thereby the plaintiffs sustained injury for which it sought damages in the sum of $25,000. The defendant by its answer denied ownership in the plaintiffs and pleaded ownership in itself.
The facts as developed on the plaintiffs' case disclosed that prior to 1903 John H. DeMott and Mary Brewster were the respective owners of adjoining farms; the dividing line between which was a well-defined right of way twelve feet wide except at one point where a tract of one and a quarter acres, approximately 200 by 300 feet, owned by Mary Brewster was north of the aforesaid right of way and formed a jut into the DeMott farm. In 1903 Mrs. Brewster conveyed this tract, designated as the "jog" to DeMott who did not record the deed until December 10th, 1906. In the spring of 1903 and again in 1904, DeMott plowed up a part of the "jog" and planted a crop of sweet corn which he later harvested. In 1904 Mary Brewster conveyed her farm, including the "jog" to one Frank Ward and his deed was recorded in the clerk's office of Morris County on June 6th, 1905. The plaintiffs herein claim title to the "jog" as devisees of DeMott; the defendant claims title by mesne conveyance from Ward.
At the times hereinabove mentioned, the statute provided that:
"Every deed * * * shall, until duly recorded or lodged for record * * * be void and of no effect * * * against all subsequent bona fide purchasers * * * for valuable consideration, not having notice thereof, whose deed shall have been first duly recorded. * * *"
Pamph. L. 1898, ch. 232, as amended Pamph. L. 1900, ch. 16, now R.S. 46:22-1.
To prevail in their suit, it was incumbent upon the plaintiffs to establish that Ward, upon whose deed their title is based, had notice of the unrecorded deed delivered to DeMott in 1903. The notice may be actual or constructive. Coleman v. Barklew, 27 N.J.L. 357. Possession may or may not amount to implied notice. In Holmes v. ...