On August 14, 1956 this court filed its conclusions in the above entitled matter after trial and argument. Upon an appeal to the Appellate Division of the Superior Court, the defendants conceived that they had overlooked facts which appear in the chain of title and which conceivably might have changed the conclusion arrived at by the court. Upon application to the Appellate Division the matter was referred to this court by an order which reads in part as follows:
"ORDERED that this cause be remanded to the Superior Court of New Jersey, Chancery Division, Cape May County, in order that the trial court may consider and pass upon the legal effect of the following: * * * and determine whether the aforementioned proofs cured any defect that may have existed in defendants' title."
the appeal being held in abeyance for a decision upon the other questions of law raised by the defendants. In the court's initial conclusions, judgment was rendered against the defendants.
In addition to the chain of title set forth in the original opinion (see 41 N.J. Super. 324 (Ch. Div. 1956)) there appear the following instruments:
Deed dated November 30, 1925 from John Axford Higgons and Ella W. Higgons, his wife, to Kathryn M. Connolly, recorded in the Clerk's Office of Cape May County in Book 428 of Deeds, page 12. This deed purported to convey the interest of Martha Ann Blakeman a one-third interest in the lands here involved to the said Kathryn M. Connolly.
The court, by its prior opinion herein filed, concluded that the Higgons had no title to or interest in said lands.
As far as here material, this conveyance contained the following phraseology:
"* * * convey and confirm unto the said party of the second part, their heirs and assigns, all their undivided one third interest in and to all and singular of a certain island of sedge marsh situate in the Upper Township of Cape May aforesaid lying between the Upper Main and Middle Thoroughfare that falls into Corson's Inlet, * * *
Being the same parcel or tract of land which Ocean City Association by indenture bearing date the thirty first day of May A.D. 1907
and recorded in Clerk's Office of Cape May County, New Jersey on the eighth day of June A.D. 1907 in Deed Book 218 Page 129 &c., granted and conveyed unto the said John Axford Higgons, in fee. Which is all their right, title and interest in the said Martha Ann Gandy or 'Blakeman' Island, and in the ocean front land in Ocean City, New Jersey, southwest of fifty-ninth Street, to Corson's Inlet. * * *
And the said parties of the first part doth by these presents, covenant, grant and agree to and with the said party of the second part, her heirs and assigns, that they the said parties of the first part and their heirs all and singular the hereditaments and premises hereinabove described and granted, or mentioned and intended so to be, with the appurtenances, unto the said party of the second part, her heirs and assigns, against them the said parties of the first part and their heirs and against all and every other ...