Price, Schettino and Hall. The opinion of the court was delivered by Price, S.j.a.d.
By this appeal plaintiffs, in an action for specific performance of a written contract for the sale of realty, seek the reversal of a judgment of the Superior Court, Chancery Division, dismissing their complaint on the merits and entering judgment in favor of defendant on its counterclaim for $14,000 paid by it under the contract. After the completion of plaintiffs' case defendant offered no proofs but moved for judgment on the ground that the right thereto was established by the evidence presented by plaintiffs.
Defendant had refused to accept plaintiffs' conveyance because it alleged that two courses in the description in the contract (the description being taken from plaintiffs' deed and repeated in the deeds of their predecessors since 1859) could be plotted as part of the total deed description in such a way as to result in the plaintiffs' property comprising substantially less acreage than reflected in the aforesaid contract.
The contract was dated December 6, 1955. Under its terms title to the property was to close August 1, 1956. Thereafter the closing date was extended by mutual agreement but defendant refrained from closing title on the date specified in the last extension. Plaintiffs thereupon on February 18, 1957 served a notice on defendant making time of the essence and requiring defendant to accept plaintiffs' deed on March 7, 1957. Defendant ignored the notice and refused to accept plaintiffs' deed.
Under the aforesaid contract between the parties the purchase price was $235,000 of which sum $14,000 on account of the purchase price was paid by defendant by an initial installment of $4,000 and by a subsequent payment of $10,000.
The premises in question were described in former deeds in the title chain as containing approximately 225 acres
of land in Madison Township, Middlesex County, New Jersey, and as being part of a tract known as the Tone Farm. In the early part of the last century the farm, containing 255 acres, was owned by one Joshua Smith. The property was thereafter partitioned and in 1849 surveys were made in conformity therewith. Hezekiah Smith, the son of Joshua Smith, later became the owner of the farm and in 1854 conveyed thereout two parcels containing approximately 20 and 10 acres respectively. He sold the remaining lands to one Preston in 1859. It was in that conveyance that the two courses in question first appeared in plaintiffs' chain of title.
Defendant contended that plaintiffs should have instituted an action to quiet title instead of the action for specific performance which sought to compel defendant to accept a conveyance which might expose it to the hazard of litigation or with reference to which it might have to institute an affirmative action to quiet the title. The trial court, as aforesaid, upheld defendant's contention.
The criticized description of the premises in question was by metes and bounds and consisted of 23 courses, monumented by certain calls and references. The early deeds in the chain of title by way of recital referred to the property as "Premises known as the Tone Farm and Part of the Real Estate of Joshua Smith in the Township of South Amboy, N.J."
The description contained in the contract in question was the same one of 23 courses appearing in the earlier deeds with certain added recitals which excepted therefrom described portions of the property conveyed by plaintiffs' predecessors in title during the years 1936 to 1953.
The aforesaid description incorporated reference to two old surveys. The identification of the beginning point of the tract was a cedar tree standing on the west side of Deep Run, a flowing stream. Its original location is undisputed. The description contained the following recital preceding the first course: "thence by a survey of A. J. Disbrow, A.D. 1849." Then followed 14 specific courses with occasional
monumental references. The 14th course went "to the corner of a tract conveyed to William Smith by deed of March 1854." The description then read: "thence along the same and another small lot conveyed away by the said party by survey of 1854 as the needle then pointed the four following courses and distances, to wit: * * *." Then followed courses 15 to 18 inclusive. The problem raised by the deed description was caused by the presence of courses 19 and 20. After reciting the compass direction and distance of the 18th course, the following call preceded the 19th course: "thence by the original survey of 1849 as the needle then pointed * * *." Without reference to any other survey, there followed the remaining courses including course 22 which went to Deep Run, and course 23 which read: "down Deep Run its various courses to the cedar tree at the beginning."
The inclusion of courses 19 and 20 in the description containing 23 courses was claimed by plaintiffs to be incorrect. However they contended that, as the call in the deed at the commencement of the 19th course was "thence by the original survey of 1849 as the needle then pointed," if one followed that call commencing at that point in the description, eliminated courses 19 and 20 and recognized and followed from then on only courses 21, 22 and 23, which were included in said survey, the plotting would close. They asserted that the 1849 survey call was controlling and took precedence over the courses and distances reflected in the 19th and 20th courses which plaintiffs claimed were included erroneously; that it was so apparent that the two courses in question were included improperly that they should be treated as surplusage and ignored.
Defendant however showed that, if the description were plotted by including, instead of discarding, the 19th and 20th courses and by immediately following with the 21st, 22nd and 23rd courses, there would likewise be a closure because the call of the 22nd course was to a definite boundary line -- the brook known as Deep Run; that, although the 22nd course so plotted to "Deep Run" would be much shorter than as described in the contract (350 to 440 feet as compared
with 1,035 feet), it would result in a closure because the 23rd course as stated was "down Deep Run its various courses to the cedar tree at the Beginning." Plaintiffs' engineer admitted the correctness of defendant's contention as to the closure resulting from including the 19th and 20th courses in the plotting but declared that it was illogical and incorrect to achieve that result by ignoring the aforesaid "1849 call." Such tract, so plotted by including the 19th and 20th courses and without reference to the "1849 survey call," would contain approximately 25 fewer acres than the acreage encompassed by the description if plotted by excising the two courses therefrom. The location of the acreage which would be excluded by such plotting was the southern portion of the former Tone farm. Because the inclusion of courses 19 and 20 in a plotting of the property without reference to the 1849 survey could result in a closure the defendant contended that heirs of Hezekiah Smith might assert ownership of the 25 acres in question; that the difficulty resulting from the misdescription was one which could be resolved only by an action to quiet title and that defendant should not be forced to perform the contract and then be compelled to resort to court action to clear the title.
Plaintiffs contended that proofs submitted at the trial showing the physical boundaries of adjoining properties confirmed the fact that the portion of the Tone farm described as aforesaid did comprise 225 acres and that said boundaries coincided with the location of those of the Tone farm for which plaintiff was contending; that the length and direction of the aforesaid courses 21 and 22 reflected the true distance and direction from the end of course 18 along the boundary of adjoining lands to Deep Run; that the uncontradicted evidence showed that for over a half century there had been no challenge of the boundaries claimed by plaintiffs to encompass the true acreage as delineated by the description if courses 19 and 20 were eliminated; that the testimony of plaintiffs' engineer established that examination of the record title of the property revealed that courses 21, 22 and part of 23 "are the exact lines in a deed from John
William Tone to William Tone in 1806" and that "these lines take us past the questioned point and preclude any other interpretation of the description except that which permits it to run in accordance with the survey of 1849 * * *"; that tax bills as far back as 1905 showed the acreage to be 225 acres.
Plaintiffs' engineer testified that it was his opinion that the person who originally prepared the description in question had inadvertently included courses 19 and 20 and consequently they should be considered as surplusage and disregarded. He further testified that he examined the premises in question and determined that, by eliminating courses 19 and 20 and projecting the 21st course immediately after the 18th course, he was able to locate monuments situated at the positions called for in the description.
Plaintiff Margaret Ferry Gaub testified that she lived in the premises from 1910 to 1927; that if courses 19 and 20 were excluded the remaining courses would complete ...