Goldmann, Freund and Foley. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiff Emma Agnes Meyers, nee Fisher -- hereinafter Emma -- brought an action seeking partition of two properties, commonly known as 170 and 172 Fleming Avenue (formerly Bowery Street), Newark, N.J., based on a claim that she was the owner of an undivided one-third interest therein. Her husband, Christopher Meyers, Sr., joined in the action by reason of an alleged inchoate right of curtesy. After a full trial, the Chancery Division judge entered judgment in favor of defendants. This appeal ensued. The facts are these:
Franz Henn, by will probated in 1906, devised the properties in question, together with a property at 19 Niagara Street, Newark, to his daughter Rose Fisher for life, and upon her death to her children, share and share alike. In 1921 Rose Fisher, together with her son Frank and daughter Freida, both of age and unmarried, conveyed the Fleming Avenue properties to Dominic Martorana. Emma, then only nine years old, neither joined nor was mentioned in the deed. Martorana entered into active possession of the properties, collected rents, paid taxes and made repairs. No one disputed his ownership. He and his wife conveyed to one Neuscheler in July 1929. Neuscheler reconveyed to the Martoranas on July 7, 1930. On that date the Martoranas mortgaged 170-172 Fleming Avenue, together with a number of adjoining properties, to one Schechner for $4,000. Schechner assigned the mortgage to the Fidelity Union Trust Co. in November 1932, and the bank, in turn, assigned it to Domenico Fontana in August 1933.
Rose Fisher, the life tenant named in the Henn will, died October 19, 1931. Plaintiff Emma became 21 on October 5, 1933. Fontana foreclosed the mortgage on the Fleming Avenue properties and obtained a final decree August 19, 1936. He was the successful bidder at the ensuing public sale. The sheriff's deed, executed and delivered to Fontana on December 28, 1936, was recorded soon after. On August 2, 1948 Fontana and his wife conveyed 170 Fleming Avenue
to defendants Frank Pavalkis and Bronis Derzenaski. Subsequently, on May 25, 1949, they conveyed 172 Fleming Avenue to defendant Rinaldi.
Defendant Gurnik is the holder of two mortgages given by Pavalkis, Derzenaski and their wives. Defendants Miller, Abrams and Fontana hold mortgages given by Rinaldi.
No one ever questioned Fontana's ownership of the properties, or the mortgage he had held on them for some three years before buying in at the foreclosure sale. As owner he paid taxes, made repairs and collected rents from those who occupied the houses.
At the time Pavalkis and Derzenaski purchased 170 Fleming Avenue from Fontana in 1948, it was a three-family house. They made extensive alterations and converted the first floor into a tavern, placed two mortgages with Gurnik and made payments thereon, paid taxes and collected the rents from the tenants living over the tavern. No one disputed their ownership. The same is true with Rinaldi's ownership of 172 Fleming Avenue. After acquiring title in 1949 he, too, made extensive alterations and converted the first floor into a restaurant, in the course of which he substantially enlarged the first floor by building back about 40 feet. He made other improvements to the property, including a new roof, a heating system, and shingling, paid taxes and collected the rents.
Neither Martorana nor any of his successors in title had any knowledge of Emma's alleged one-third interest. At the time he bought the property from Rose, Frank and Freida Fisher in 1921, he was represented by an attorney who had a search made. He did not know then, or subsequently, of any outstanding interest.
(There is nothing in the record which directly indicates why Emma's possible interest did not show up in the search. The search may not have been complete, or the existence of nine-year-old Emma not known. Another possibility is that Rose Fisher did not acknowledge Emma as her child. Although the answering defendants, by way of defense, alleged
that Emma was not Rose's child, their position at the trial was that they would present no proofs in support of that claim but would leave it to plaintiffs to establish the blood relationship. The defense was undoubtedly inspired by Rose's last will and testament, dated December 1, 1926. In that will Rose refers to herself as "Rose Fox (formerly Rose Fisher)." She left one-third of her residuary estate to her daughter Freida and one-third to her son Frank. She gave the remaining one-third "to the girl living with me and known as Emma Fisher." (We shall again refer to the will later on ...