Decided: February 6, 1953.
PETER J. HECK, SR., AND LILLIE MABEL HECK, PLAINTIFFS,
EDNA CANNON, MARTIN CANNON, EDSALL HOLDING COMPANY, A CORPORATION OF NEW JERSEY, WILLIAM ROLLER, GLADYS ROLLER, EVA CORNELL, MR. CORNELL, HUSBAND OF EVA CORNELL, AND HER UNKNOWN HEIRS, DEVISEES AND PERSONAL REPRESENTATIVES, AND HIS, HER, THEIR OR ANY OF THEIR SUCCESSORS IN RIGHT, TITLE AND INTEREST; MR. RUSSELL, HUSBAND OF EMMA RUSSELL, ANNA RUSSELL, MR. RUSSELL, HUSBAND OF ANNA RUSSELL, AND THE UNKNOWN HEIRS, DEVISEES AND PERSONAL REPRESENTATIVES OF ANNA AND EMMA RUSSELL, AND HIS, HER, THEIR OR ANY OF THEIR SUCCESSORS IN RIGHT, TITLE AND INTEREST; ANNA ORDILLE, ANTHONY ORDILLE, RAYMOND MARTILINI, JOSEPHINE MARTILINI, JOSEPH MARTILINI, IDA MARTILINI, CATHERINE MORRIN, CHARLES MORRIN, LILLIAN HEMMINGWAY, ARTHUR HEMMINGWAY, ANNA PUCH, HERBERT PUCH, ANDREW M. MARTILINI, ANNA MARTILINI, ANGELO MARTILINI; THE STATE OF NEW JERSEY, FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF HAMMONTON; THE UNKNOWN HEIRS, DEVISEES AND PERSONAL REPRESENTATIVES OF EMMA RUSSELL AND HIS, HER, THEIR OR ANY OF THEIR SUCCESSORS IN RIGHT, TITLE AND INTEREST; PETER S. TILTON AND SON, DEFENDANTS
This is an action to quiet title. The facts have been agreed upon and are set forth in the pretrial order. Although the complaint contains three counts, there has been an agreement by stipulation that only the first count is to be considered. The facts are as follows:
By deed dated October 28, 1884, duly recorded in the clerk's office of Atlantic County, Book 101 at page 266, Mary A. Will et vir conveyed to Andrew Roller, Jr. and his son Andrew P. Roller, lands and premises situate in the Borough of Folsom, County of Atlantic and State of New Jersey, said lands and premises being the subject matter of this suit. Said Andrew Roller, Jr. died intestate in 1907 and left the following children born to or adopted by him: William Roller, Andrew P. Roller, Emma Russell, Lillie Martilini and Louisa Buch. Andrew P. Roller and his wife, both of whom died intestate, left no children born to or adopted by them. Thus his interest is now vested in his brothers and sisters. There
is no need, for the purpose of this opinion, to discuss further the issue and heirs of Andrew Roller, Jr. or Andrew P. Roller.
Andrew P. Roller and the heirs of Andrew Roller, Jr. failed to pay taxes for the year 1913, and on August 19, 1914 Louisa Buch purchased a tax sale certificate on the property. She attempted to perfect her title by giving notice to redeem to all persons in interest and filed her proofs on October 16, 1916. In May of 1930 Andrew P. Roller, who had an undivided one-half interest in the property by virtue of the deed of 1884, and also an additional one-fifth interest therein by virtue of the inheritance from his father, conveyed his interest in said property to the defendant, Edsall Holding Company. At the same time Lillie Martilini, a daughter of Andrew Roller, Jr., also conveyed her interest to the Edsall Holding Company, so that said defendant became the owner of a seven-tenths interest in said property, but for the tax foreclosure of Louisa Buch. No opinion is expressed herein concerning the validity of said tax foreclosure, since that question is not before this court.
On August 19, 1914, and subsequent to the purchase of the tax certificate and the attempted foreclosure proceedings, Louisa Buch entered into peaceable, uninterrupted and continuous possession of said lands and premises and remained therein until the date of her death on May 16, 1942. By her last will and testament she devised all of her real property to her husband, Detliv Buch, who remained in peaceable possession and paid the taxes on said lands and premises until August 8, 1952, at which time he and his second wife conveyed the same to the plaintiffs herein by deed recorded in the clerk's office of Atlantic County in Book 1604 at page 251.
The issues which have arisen by virtue of the aforesaid facts are as follows: (1) whether a co-tenant who gives notice to her tenants in common of a claim of title in herself, and a denial of title in them, and who subsequently holds peaceable, uninterrupted and continuous possession for more than 38 years, can thereby acquire title by adverse possession, and (2) whether the plaintiffs herein can tack their
time in possession upon the time their predecessors in title spent in possession, for the purpose of establishing title by adverse possession.
The defendant contends that the complaint states no cause of action, by reason of the fact that a tenant in common cannot wipe out the interest of her co-tenants by purchasing a tax certificate and proceeding to obtain title by virtue thereof. He cites Roll v. Everett , 73 N.J. Eq. 697 (E. & A. 1908), and Hardy v. Johnson , 12 N.J. Super. 268 (Ch. Div. 1951), for the foregoing proposition, and this court in no wise disagrees with this contention. The question involved herein is quite different.
The facts in this case, as agreed upon by stipulation, are distinguishable from those to which the proposition of law urged by the defendant is applicable. The problem here is whether one co-tenant may obtain title to realty against her co-tenants by adverse possession. It is necessary, in order for the plaintiff to succeed in establishing adverse possession to provide that the possession be hostile ...
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