On appeal from the Superior Court, Appellate Division.
For reversal -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Jacobs and Brennan. For affirmance -- Justices Wachenfeld and Burling. The opinion of the court was delivered by Oliphant, J.
[12 NJ Page 199] Appellant in this cause filed an action to quiet title to a tract of land of some 97 acres in Dover Township, Ocean County. The premises are described by metes and bounds in the complaint. The complaint alleges that appellant took title on May 12, 1951, from one Gerber and wife, by a warranty deed in fee simple, and further alleges that he had been in peaceable possession of the lands and that the defendants claimed to own the same or some interest therein.
The defendants-respondents had previously owned the land as heirs of William S. Predmore and had conveyed whatever interest they had by a deed dated December 22, 1948, to Arthur Waugh, and he in turn had conveyed the title to Gerber.
Prior to this latter conveyance the two defendants, Florence C. Pearce and Mary A. Predmore, on December 30, 1949 filed a suit in the Superior Court, Chancery Division, against one Waugh, one Silverman who had executed the acknowledgment on the deed and who allegedly had an interest in the transaction, Augustus C. Predmore, Rose E. Predmore, and one De Fonis, to vacate and set aside the deed given to Waugh on December 22, 1948 on the ground that it had been obtained by fraud. The gist of the fraud was that the deed was altered after execution and before recording by Silverman and that he added to the deed four additional tracts identified by reference to four different deeds.
In that action on December 7, 1950 the trial court determined and adjudged that the first tract described in the deed was in the deed when executed, but that the other four parcels described in the deed were fraudulently added after its execution. The deed was held good as to the first tract but the conveyance as to the other parcels was set aside and damages were assessed against Silverman.
The appellant contended below he is presently the owner of the property described in the first paragraph of that deed and that that property is the same property mentioned in his deed, and that the judgment obtained in the Pearce-Predmore suit casts a cloud on his title.
The trial court below found that the appellant's warranty deed from Gerber was valid; that the appellant was a bona fide purchaser; that the premises which are involved here are the same as those described as the first tract of the deed in question in the previous suit; that the lands are not "wild lands" within the statutory definition, and that the plaintiff was the owner in fee of the tract described in the complaint.
On appeal to the Appellate Division that court reversed the aforesaid judgment holding that the complaint should have been dismissed because an action to quiet title under R.S. 2:76-2 (N.J.S. 2 A:62-1) could be maintained only by a plaintiff who is in possession in fact and not merely constructively, and that the plaintiff-appellant had failed to establish such possession. It further held that there was no basis for the complaint on the theory of the doctrine of quia timet, and that the appellant's remedy was by an action in the Law Division in the form of an action in ejectment or for possession. See Rule 3:74-1.
This court granted certification on the appellant's petition therefor.
The Appellate Division was in error in holding that the complaint should have been dismissed. The complaint filed alleges a suit to quiet title cognizable in equity, and even assuming that the appellant's remedy was by complaint in the form of an action for ejectment, the cause should have been retained and remanded to the Chancery Division since no objection to the jurisdiction had been made by the defendants and the cause initially was properly brought in the Chancery Division, Rule 3:40-2; Art. VI, Sec. III, par. 4 of the Constitution; Poulos v. Dover Boiler & Plate Fabricators, 2 N.J. Super. 473 (Ch. Div. 1949); reversed on other grounds, 5 N.J. 580 (1950); O'Neill v. Vreeland, 6 N.J. 158 (1951); Massari v. Einsiedler, 6 N.J. 303 (1951); and further no timely application was made by either party to transfer the action to the Law Division or by the court on its own motion. Rule 3:40-3.
The Appellate Division found, contrary to the trial court, that the lands involved were "wild lands" within the statutory definition, and from the short record it appears to be a proper deduction. In fact, the appellant does not now contest this holding or claim that he comes within the provisions contained in R.S. 2:76-3. Under that particular section, where the lands are "wild lands" actual peaceable possession is ...