The questions here arise as a result of a complaint to quiet title and the answers thereto.
The facts and contentions of the plaintiff and the defendants Gallagher are as follows:
By deed dated May 30, 1842, recorded in the clerk's office of Cape May County in Book 3, page 546, Benjamin Springer, administrator, etc., conveyed the lands in question to Somers C. Godfrey.
On November 7, 1853 Somers C. Godfrey made, executed and delivered a mortgage to secure the payment of the sum of $500 in six months from the date thereof to Alfred Cooper, Benton F. Henderson and Thomas Franklin Cooper, trading under the name of Cooper, Henderson & Co., which mortgage was recorded in the office of the clerk of Cape May County in Mortgage Book F, page 4.
By deed dated June 26, 1854 and recorded in the clerk's office of Cape May County, Elva Gorson, sheriff, conveyed the lands to Lemuel H. Hopkins.
On September 24, 1897 Martha Ann Blakeman filed a bill of complaint in the Court of Chancery entitled "Martha Ann Blakeman, Complainant vs. Emma Bourgeois, et al., Defendants," seeking to quiet title to the lands in question, alleging, inter alia , that: On or about March 19, 1860 the above referred to mortgage was assigned after mesne intervening assignments, to Martha Ann (Gandy) Blakeman (hereafter referred to as Blakeman). The lands mentioned and referred to in said mortgage consisted of an "island of sedge marsh" situate in the Township of Upper, Cape May County, N.J., being the same premises referred to in the above first-mentioned deed. No interest had been paid as was required in said mortgage up to the date of the assignment, and the said Blakeman entered into possession of the
described premises and had since that date "continued in the peaceable and actual possession of the same." One Emma Bourgeois had laid claim to the same by virtue of a conveyance from John Wahl Queen, administrator, etc., of the estate of Lemuel H. Hopkins. Thereafter the said Emma Bourgeois obtained what purported to be a release from the above referred to mortgage from Alfred Cooper, representing himself as the surviving partner of the partnership which was the designated mortgagee in said mortgage, but that she took said release with actual knowledge of the prior assignment of mortgage to the said Blakeman. Blakeman had been in "open, notorious, continued and peaceable possession" since on or about 1860. The defendants, by way of answer, denied that Blakeman had any assignment, there being no record thereof in the county clerk's office; that they had any knowledge of any such assignment, "actual or otherwise," and that there was a default under the mortgage, or that Blakeman ever entered into or "is now" in possession of the premises.
In the year 1898 testimony was taken before Vice-Chancellor Grey upon the jurisdictional question of whether the plaintiff had been in peaceable possession. This hearing was preliminary to a motion of the defendants to feign an issue to be tried by the law court on the question of title, they having denied complainant's allegation of peaceable possession. The vice-chancellor filed an opinion which is reported in Blakeman v. Bourgeois , 59 N.J. Eq. 473 (Ch. 1900), but no order or decree was entered thereon nor, as far as the file discloses, were any further proceedings, orders or decrees had in the cause.
On May 18, 1897 Blakeman entered into an agreement with John J. Gandy, Charles G. Miller and David P. Cresswell for the sale of the lands here in question, which agreement was recorded in the county clerk's office of Cape May County in Book 135 of Deeds, page 28. By deed of assignment dated March 3, 1902 the said Charles G. Miller assigned his interest in and to said agreement to John A. Higgons, which
deed of assignment is recorded in the county clerk's office of Cape May County in Book 169 of Deeds, page 155.
On June 19, 1897 John Wahl Queen, administrator, etc., of Lemuel H. Hopkins, conveyed the premises to Emma Bourgeois, wife of George A. Bourgeois, which said deed was recorded in Book 135 of Deeds, page 109. The Bourgeoises thereafter executed a declaration of trust which was recorded in Book 145 of Deeds, page 270. The interests of all of the cestuis and their spouses eventually vested in the Ocean City Association hereafter referred to.
On July 28, 1903 Ocean City Association filed a bill of complaint in the Court of Chancery entitled "Ocean City Association, Complainant, vs. David P. Cresswell, et als., Defendants," alleging that: The said Blakeman had executed a deed to Gandy, Miller and Cresswell on August 30, 1897, which deed was to be delivered to them only upon the payment of the balance due her under the above referred to agreement of sale, but that without paying said balance of consideration, the said Gandy, Miller and Cresswell fraudulently obtained said deed and caused the same to be recorded in Deed Book 169, page 153. Immediately after the execution by her of the said deed, Blakeman tendered the same to the purchasers and demanded the balance of the purchase price, which payment being refused, she declared that her agreement with them was "forfeited and at an end." On May 31, 1899 she received $500 from Ocean City Association and signed and delivered to Harvey Lake, its agent, a receipt for the purpose of transferring to him "her title to the said mortgage and premises."
On May 29, 1899 John J. Gandy assigned his interest in the above referred to agreement to Harvey Lake, agent for Ocean City Association, which deed of assignment was recorded in Deed Book 135, page 28.
After final hearing before Vice-Chancellor Bergen he filed an opinion which, together with the opinion of the Court of Errors and Appeals, to which an appeal was taken, is reported as Ocean City Association v. Cresswell , in 71 N.J. Eq. 292 (E. & A. 1906).
By a final decree in said cause, dated March 19, 1907, the Chancery Court directed that the deed from Blakeman to Gandy, Cresswell and Miller was void and directed that the Ocean City Association convey to Cresswell and Higgons each an undivided one-third interest "of such interest" as it obtained from Blakeman in the premises, and that the said two named individuals thereafter pay to Ocean City Association a proportionate share of the sum paid by it to Blakeman. Said final decree further specified that Blakeman convey to Ocean City Association, Cresswell and Higgons an equal undivided interest in said premises by a "good and sufficient conveyance * * * with the usual covenants against encumbrances, and that she deliver at the same time * * * possession of said premises."
Thereafter, by mesne intervening conveyances, the one-third interest of Higgons was conveyed to defendant Gallagher, and the one-third interest of Cresswell and the one-third interest of the Ocean City Association was conveyed to plaintiff.
The plaintiff contends that it is solely vested with the entire fee. It bottoms this claim upon the conveyance of Elva Gorson, sheriff, to Lemuel H. Hopkins.
The defendant Gallagher contends that he is vested with an undivided one-third interest and relates his claim to its origination from the title of Blakeman. It should be parenthetically stated that Gallagher does not dispute that plaintiff has a two-thirds undivided interest in the premises.
The question reduces itself to a determination of whether Blakeman ever obtained the fee by her alleged possession under the Godfrey mortgage upon a default in the payments required thereunder or by adverse possession under the Statute of Limitations. No oral proof of possession under either theory was submitted. In the former connection it should be observed that the sale by Elva Gorson, sheriff, post-dated the mortgage under which Blakeman claims title, the mortgage being dated November 7, 1853 ...