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Braue v. Fleck

Decided: November 19, 1956.


On appeal from the Superior Court, Chancery Division, Bergen County.

For affirmance -- Chief Justice Vanderbilt, and Justices Oliphant, Wachenfeld, Burling and Jacobs. For reversal -- Justice Heher. The opinion of the court was delivered by Oliphant, J.


This is an appeal from a judgment in an action to quiet title entered in the Superior Court, Chancery Division, establishing that the plaintiffs-respondents had a fee-simple title in the premises in question and that the claim of the defendants-appellants was barred on June 26, 1949 by the limitations in N.J.S. 2 A:14-6 and N.J.S. 2 A:14-7.

We will decide the question presented on its merits.

The action was brought pursuant to N.J.S. 2 A:62-1 et seq. The purpose of this statute is to afford a remedy in equity to a person who is in peaceable possession where no adequate remedy at law existed, for the purpose of settling the title to land. Brady v. Carteret Realty Co., 70 N.J. Eq. 748 (E. & A. 1906); McGrath v. Norcross, 71 N.J. Eq. 763, 765, 766 (E. & A. 1907). Cf. Jersey City v. Lembeck, 31 N.J. Eq. 255, 256 (E. & A. 1879).

While under the old practice the final decree of the Court of Chancery awaited the determination of the law courts on the question of the actual title to land, under our present practice and rules where the parties agree or there is no timely application by either party to transfer this part

of the action to the Law Division, the matter can be properly tried and decided in the Chancery Division. Perlstein v. Pearce, 12 N.J. 198, 201 (1953), and the cases and rules cited there.

It is undisputed that the plaintiffs and their predecessors in title have been in actual peaceable and uninterrupted possession of the premises in question for upwards of 30 years last past.

The defendant, Camille A. Fleck, contended she is an adopted daughter of Augusta M. Mast, who pre-deceased her own mother Georgianna Smith, who died intestate on July 14, 1921. It was stipulated below that on December 10, 1912 a final judgment of adoption was entered granting the adoption of one Elizabeth Rettig to A. J. Mast and Augusta M. Mast, his wife. When Georgianna Smith died intestate she left surviving her as next of kin and heirs at law William A. MacFarland, a son; Anna Rettig, a daughter; Edward P. MacFarland, a son; Elizabeth W. Lowenstein, a daughter, and Camille A. Mast, now Camille A. Fleck.

In the years of 1922 and 1923 all the above-named heirs at law and next of kin and their respective spouses, with the exception of Camille A. Mast, conveyed the three parcels in question in fee simple to the predecessors in title of the plaintiffs-respondents. The date of the last conveyance was August 18, 1923. Camille A. Mast was born June 26, 1908. It was stipulated that she was 13 years of age at the time of the death of Georgianna Smith in 1921. She became of age on June 26, 1929.

The issues raised by the pleadings in this case are whether the claim of title to an undivided one-fifth interest by the defendants-appellants as tenants in common was barred by any of the applicable statutes of limitations. N.J.S. 2 A:14-6 and 7 (the 20-year statute) and N.J.S. 2 A:14-30 and 31 (the 30- and 60-year statutes of limitations), plus the further question whether the disability of infancy of Camille A. Fleck tolled the running of the applicable statute sufficiently to establish her title in the undivided one-fifth interest.

The trial court held that since Camille A. Fleck became of age on June 26, 1929, the 20-year statute, N.J.S. 2 A:14-6 and N.J.S. 2 A:14-7, started to run then and her right of action was barred on June 26, 1949; and as against the claim of the defendants the plaintiffs' titles are good.

The three statutes or sections thereof under consideration here, N.J.S. 2 A:14-30 (the 30- and 60-year section as amended in 1922), N.J.S. 2 A:14-31 (the 30-year statute under color of title) and N.J.S. 2 A:14-6 and 7 (the 20-year statute), differ slightly in language but not in essential purposes from the original statutes enacted in this State relating to the limitation of suits respecting the title of lands. These were the act of June 5, 1787 and the act of February 7, 1799, Patterson's Laws, pp. 81, 352.

Statutes of this type are of early origin and had a counterpart in the Roman law. Blanchard's Treatise on the Statutes of Limitation (1822), 1 Law Library (1833). They in effect give a title by negative prescription. The bar arising from such statutes after uninterrupted adverse possession of corporeal hereditaments for the times fixed by the statute is said to confer a title by prescription; not that a positive right or title is acquired but that the remedy of him who had the right is forever gone. This sort of prescription therefore is not improperly called a negative prescription, whereas on the other hand title to incorporeal hereditaments such as rents, rights of way and common may be acquired by prescription by immemorial usage on the analogy or theory of a lost grant. Blanchard, p *5, *45; cf. Thorpe v. Corwin, 20 N.J.L. 311 (Sup. Ct. 1844); Lehigh Valley R.R. Co. v. McFarlan, 43 N.J.L. 605, 617 et seq. (E. & A. 1881); Predham v. Holfester, 32 N.J. Super. 419, 422 (App. Div. 1954).

The English statutes fixing limitations to actions or for the recovery of real property, besides confirming the title of the possessors, had the effect of arranging the claimants of land in three different classes; namely, first, as parties claiming the whole fee simple of which they or their ancestors have been disseized; secondly, as claiming particular

estates, and lastly, as claiming reversions or remainders expectant on the determination of particular estates. Blanchard, p. *2.

It has been uniformly held, since an early period, in this State that our three statutes likewise relate and apply to different subjects neither of which conflicts with the other but both are open to a defendant, so that if either suits his case and is sufficient to defend his possession he is at liberty to avail himself of it, although the facts of his case may exclude him from the benefit of the other. West v. Pine, 4 Wash. C.C. 691, Fed. Case 17,423; Spottiswoode v. Morris & Essex R.R. Co., 61 N.J.L. 322 (Sup. Ct. 1898), affirmed 63 N.J.L. 667 (E. & A. 1899); Model Plan Agency v. Diamond, 101 N.J. Eq. 786 (E. & A. 1927).

At the common law, for every complete title to lands two things were necessary: (1) the possession or seizin, and (2) the right of property therein. 3 Chitty Blackstone *177. These English statutes of limitations had divers application to the many forms of writs and actions that had been developed over the two centuries in the common law of England respecting the law of title to lands there. The various forms of possessory actions and real actions are discussed in detail in 3 Chitty Blackstone *166 to *200; Blanchard, supra, 1 Law Library, supra. But by the year 1727 all real actions and mixed actions with the exception of the writ of right and the writs of dower and ejectment had been abolished in England for all practical purposes and the action in ejectment had become the common method of trying the title to lands there. 3 Chitty Blackstone *194, *200; Sedgwick & Wait, Trial of Title to Lands sec. 26; Blanchard, supra, *7; Angell on Limitations (5 th ed.) sec. 336.

In cases where the right of possession was barred by a recovery on the merits in a possessory action or the statute of limitations the claimant in fee simple could sue out a writ of right which was the highest writ in the law, but it would only lie for him who had an estate in fee simple and not for a lesser estate. 3 Chitty Blackstone *193.

The action in ejectment, which depended on the right of entry in the person seeking to recover, though not mentioned eo nomine in any of the English statutes of limitations was held to be within the statute, 21 Jac., c. 16 which provided "none shall make an entry into land but within 20 years after their right or title shall first descend or accrue." Blanchard, supra, *8. So this was the statute of limitations with respect to any possessory action as such, including ejectment. Cf. Predham v. Holfester, supra, 32 N.J. Super., at page 421.

The statute of limitations which applied to the writ of right was 32 Henry VIII, c. 2. Blackstone had said that a possession of 60 years under that statute was a sufficient title against all the world and could not be impeached by any dormant claim whatsoever. 3 Chitty Blackstone *196. This statement of his has been criticised because he only mentioned the limitation of 60 years, and the basis of the criticism is that that statute made a distinction where the disseizin was committed against the demandant himself in which case the limitation was 30 years, and where it was committed against his ancestor in such case the limitation was 60 years; nor was it true where the claimant and demandant had no right to enter within the time, as where an estate tail, or an estate for life or years, continued after the 60 years. Blanchard, supra, 1 Law Library *41. Cf. Content v. Dalton, 122 N.J. Eq. 425, 428 (E. & A. 1937).

Seizin and the right of entry in the demandant and an alleged disseizin or ouster by act of occupant or tenant were essential elements of the various writs and actions in England under the statutes. The demandant had to have a present right of entry, so as to devisees, as soon as they obtain seizin under the devise and the vested title and the right of entry were combined in them, it was evident they were in the same situation as other persons who had seizin, and then and only then could they maintain a ...

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