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Caruso v. Hunt

Decided: October 11, 1961.


Wick, J.s.c.


This matter comes before the court as an action to quiet title to land located in the Township of Logan, County of Gloucester. The action was instituted on February 2, 1960 by plaintiffs, who claim as rightful owners of the land, against defendants claiming as adverse possessors.

The facts disclose that on April 26, 1952 plaintiffs purchased lands described in a deed from Angelina Pratta, which was recorded on April 29, 1952 in the office of the Clerk of Gloucester County. Plaintiffs' predecessor in title had purchased the land from Anna Matteo O'Brien and John O'Brien, her husband, by deed dated November 20, 1943 and recorded November 23, 1943. Anna Matteo O'Brien had purchased the land and premises from E. Arlington Jones, Sheriff of Gloucester County, by deed dated July 1, 1936 and recorded July 3, 1936, as the result of a mortgage foreclosure wherein the interest of Walter Rittenhouse, sometimes known as Walter Rittengouse, was foreclosed. Although he had no further interest in the property, Rittenhouse remained on the premises presumably until December 5, 1944, when he conveyed said land to Mildred and Harold Huber by deed recorded on December 13, 1944. The Hubers subsequently conveyed the lands to the present defendants on April 3, 1959, the deed being recorded on April 8, 1959.

Defendants contend that plaintiffs are barred from claiming title to the lands in question by reason of N.J.S. 2A:14-6 which provides:

"Every person having any right or title of entry into real estate shall make such entry within 20 years next after the accrual of such right or title of entry, or be barred therefrom thereafter."

The main inquiry, therefore, is to determine whether defendants have a valid claim to the land by reason of adverse possession.

It has long been the law in this State that "To sustain a claim of title by adverse possession, one has the burden of proving by clear and convincing evidence, possession which is actual and exclusive, open and notorious, continued and uninterrupted, adverse and hostile for the statutory period." Foulke v. Bond , 41 N.J.L. 527, 545 (E. & A. 1879); Predham v. Holfester , 32 N.J. Super. 419 (App. Div. 1954); De Bow v. Hatfield , 35 N.J. Super. 291 (App. Div. 1955), certification denied 19 N.J. 327 (1955); Mulford v. Abott , 42 N.J. Super. 509, 513 (App. Div. 1956). "'Hostile' means 'with the intention to claim title against the true owner, and, * * *' [the] 'use, which is claimed to be adverse was such that the owner knew or should have known that the disseizor intended to make title under it.' Poulos v. Dover Boiler & Plate Fabricators , 5 N.J. 580, 588 (1950); Cobb v. Davenport , 32 N.J.L. 369 (Sup. Ct. 1867). * * *"

Defendants' contention of adverse possession for the 20-year statutory period is based upon the claim that their grantors' predecessor in title, Rittenhouse, made adverse entry upon the lands in question by deed dated October 17, 1924. Such a position seems highly untenable in view of the fact that Rittenhouse obtained possession through deed from the then rightful owners, Angelina and Pasquale Pratta. It is not conceivable how the entry of Rittenhouse could have been adverse when no one other than Rittenhouse claimed any interest in the land, and he owned a valid deed thereto.

It necessarily follows that the original entry by Rittenhouse on the land was rightful and undisputed, and remained so until July 1, 1936, the date of the deed resulting from the mortgage foreclosure. Such period, therefore, cannot be considered as constituting any part of the 20-year statutory period required for adverse possession.

Dispute does arise, however, as to the nature of Mr. Rittenhouse's possession for the period beginning with the date of the sheriff's deed until the subsequent conveyance by him on December 5, 1944 to defendants' grantors, Mildred and Harold Huber. During this period, spanning some eight years, Rittenhouse remained on the premises although he no longer retained any legal interest in the property.

There is evidence to the effect that certain taxes on the property were assessed against and paid by Mr. Rittenhouse subsequent to 1936. This in itself would hardly satisfy the elements necessary to qualify one as an adverse possessor, but must be considered as a factor, which, when added to all other factors, will aid in determining the true character of Rittenhouse's possession. It has been held that payment of taxes is not an act of hostility, Brewster ...

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