Goldmann, Freund and Conford. The opinion of the court was delivered by Freund, J.A.D.
[45 NJSuper Page 508] This is an appeal from a judgment of the Superior Court, Chancery Division, in an action to quiet the title to certain property declaring plaintiff's title thereto "to be good and free from any claim, estate, interest, right in, or lien or encumbrances" by any of the defendants. The property comprises some 357 acres and is referred to as an "island" off the coast of Ocean City, in Cape May County, although by accretion it has come to be joined to the mainland.
The judgment was previously before this court and a remand was granted for the trial court to consider the legal effect of four recorded instruments and to determine whether they cured any defect that may have existed in defendants' title. The trial court made its determination that the four recorded instruments afforded no basis of title in the defendants and confirmed the judgment previously rendered in favor of the plaintiff. Robinson-Shore Development Co. v. Gallagher , 43 N.J. Super. 430 (Ch. Div. 1957). Appeal is again taken and the entire case is now before us for consideration.
The facts and contentions are fully presented in Robinson-Shore Development Co. v. Gallagher , 41 N.J. Super. 324 (Ch. Div. 1956). For the purpose of this opinion, however, we summarize the pertinent facts as follows: Somers C. Godfrey became vested with the title to the island in question by deed dated May 30, 1842. In 1854 a judgment creditor of Godfrey levied and sold the premises at execution sale to Lemuel H. Hopkins. From Hopkins, conveyance was made to Emma Bourgeois and later by mesne conveyances to plaintiff.
Prior to the 1854 execution sale, however, Godfrey had mortgaged the island and, as the mortgage had been duly recorded prior to the sale, the purchaser at the execution sale took title subject to the mortgage. This mortgage was subsequently assigned to Martha Ann Gandy, who upon her marriage became Martha Ann Blakeman. In 1897 Mrs. Blakeman, claiming to have sufficient title to the island to make a conveyance by virtue of entry under default in the mortgage and continuous possession since 1860, entered into a contract to sell it to John J. Gandy, Charles G. Miller, and David P. Cresswell. Thereafter Miller assigned to one John A. Higgons his one-third interest in the contract, and Gandy similarly assigned his interest to an agent of the Ocean City Association. At the instance of the purchasers Mrs. Blakeman initiated a suit in the former Court of Chancery to quiet the title to the property, joining as a defendant Emma Bourgeois who
claimed her title under the 1854 execution sale to Hopkins. Blakeman v. Bourgeois , 59 N.J. Eq. 473 (Ch. 1900). In that action Bourgeois denied that the plaintiff was in peaceable possession of the island and, hence, that she was a proper party to maintain the action. Additionally, she asserted her claim to a superior title. Vice-Chancellor Grey concluded that Blakeman was in peaceable possession, but no decree was ever entered thereon and no further proceeding in the cause was had in equity or at law on the question of title.
Independent of her contract of sale, Mrs. Blakeman entered into separate negotiations with the Ocean City Association and, on May 31, 1899, assigned to it all her right, title and interest in the island.
In 1903 the Ocean City Association filed a bill of complaint in the Court of Chancery for cancellation of Mrs. Blakeman's first contract and for specific performance of its independent agreement of assignment. The court refused to order cancellation of the original contract, but rather directed in effect that it be specifically enforced. Ocean City Association v. Cresswell , 71 N.J. Eq. 292 (E. & A. 1906). Thus, each of the three purchasers under the original contract, of which Ocean City Association was one by assignment, took a one-third interest in Blakeman's claimed title. Subsequently, Ocean City Association acquired Cresswell's interest, leaving outstanding but a one-third interest in Higgons, the assignee of the Miller one-third interest.
To further complicate matters, in addition to this two-thirds interest under the Blakeman title, Ocean City Association also acquired the interest which initially stemmed from the 1854 execution sale to Hopkins. Thus, at this juncture Ocean City had complete title, except for the outstanding Higgons' interest.
Thereafter, on November 30, 1925, Higgons conveyed his one-third interest to one Kathryn M. Connolly who, on the same day, executed and delivered to Higgons a purchase money mortgage. On the following day Ocean City Association by deed dated December 1, 1925 conveyed its interest to Kathryn M. Connolly. She, in turn, on the same
date conveyed the interests thus acquired to Southern Garden, Inc., from whom the present plaintiff took ...