McGeehan, Colie and Eastwood. The opinion of the court was delivered by Eastwood, J.A.D.
This is an appeal from a judgment of the Superior Court, Chancery Division, directing reformation of two deeds conveying adjoining premises in South Amboy, New Jersey, to the parties to this issue.
On July 26, 1945, John H. Coyne, executor of the last will and testament of Peter Coyne, deceased, by deed conveyed certain lands and premises to Edward Vazquez and Anita Vazquez, his wife, described as follows:
"All that tract or parcel of land situated in the City of South Amboy, County and State aforesaid in Block Number Twelve which said lots are marked and more particularly distinguished on the recorded map of the City of South Amboy, by the Numbers Fourteen and Fifteen, on said block being Fifty (50) feet in front and rear and One Hundred (100) feet in depth, and bounded westerly by Lot Number Sixteen, northerly by Lot Number Seventy and Seventy-one (70 & 71), easterly by Lot Number Thirteen and southerly by George Street."
On August 24, 1945, John H. Coyne, executor as aforesaid, conveyed certain other lands and premises to Samuel Galinsky and Dora Galinsky, his wife, particularly described as follows:
"Being known and designated as lot number thirteen (13) in Block number twelve (12) on a 'Map made and surveyed by John Perrine, Jr., in June 1835, and filed in the County Clerk's Office in New Brunswick, N.J. Said tract hereby conveyed contains twenty-four hundred (2400) square feet and is bounded as follows: Easterly by one foot strip reserved from said lot; Northerly by lot number Seventy two (72); Westerly by lot number fourteen (14) and Southerly by George Street, being the same lot (excepting the strip one foot by one hundred feet) that was conveyed by deed dated the 21st day of January, 1888 from Mary Snyder and husband to Daniel Coyne said deed is recorded in the Middlesex County Clerk's Office in Book 216 of deeds page 376."
The latter described lands were situate to the east of and contiguous to the Vazquez premises. Thereafter, on September 1, 1945, Samuel Galinsky and his wife, conveyed these premises to the Toths.
The Vazquezes moved into their home in February, 1946. They obtained a survey of their property in May, 1946, which disclosed that the westerly side line of the rear portion of the Toths' two-story frame dwelling house encroached approximately two and one-half feet and the fence on the same side extending to the rear line of Toths' property encroached approximately three feet, over on to the Vazquezes' property. Sometime later, plaintiffs removed the fence and a controversy arose when they proceeded to erect a new one on the same line. Defendants constructed a wall along the dividing line disclosed by their survey, intended to be used as the rear wall of their garage.
The plaintiffs contend that the parties purchased their respective properties based upon their physical boundaries, and in their complaint prayed for reformation of the deeds and the removal of defendants' garage wall. The defendants counterclaimed for damages, for trespass and removal of plaintiffs' building and drain pipe.
All parties participating in the conveyances above-mentioned were joined as defendants. On motion, the complaint was stricken as to defendants Coyne, Wolpin (the attorney who prepared the conveyances and transacted the business connected therewith), and Galinsky. No appeal was taken therefrom.
Defendants contend that under Rule 3:56 the complaint should be stricken as insufficient in law; that in conveying lots 14 and 15 to them, the grantor divested himself of his entire interest in that property and could not be heard to speak in derogation of his grant, citing Blumberg v. Weiss , 129 N.J. Eq. 34 (E. & A. 1941). Furthermore, that when grantor subsequently sold his adjacent property and it was thereafter resold, the last mentioned purchaser stands in no better position than the original grantor.
The plaintiffs contend that their survey, based upon a different map and beginning point, placed their property line along the fence line as the parties anticipated; that the parties purchased on the basis of the physical boundaries and ...