Conford, Freund and Sullivan. The opinion of the court was delivered by Sullivan, J.A.D.
Defendants appeal from an adverse judgment in a suit to quiet title brought by plaintiffs pursuant to N.J.S. 2A:62-1 et seq. Judge Leonard, sitting in the Chancery Division, held that as to the lands in question, so far as related to any claim by or on behalf of defendants, the title of plaintiffs was good.
Plaintiffs filed suit to quiet title to a tract of land in the Township of Lakewood, N.J., charging that their title as to all or part of said tract was disputed by defendants. They filed an answer claiming an undivided two-thirds interest in approximately five acres of said tract. Defendants did not challenge plaintiffs' title to the remainder of the tract. The disputed area is the northwesterly corner of the tract.
Plaintiffs' chain of title, which is of record, stems from a full covenant and warranty deed dated September 7, 1866, and recorded May 7, 1867. The deed was by Robert Estel and Joanna his wife to Charles Estel and purported to convey full title to a "thirty acres more or less" parcel of land, which included the tract described in the complaint herein. Charles Estel died in 1913. His widow died in 1936. In 1958 the heirs of Charles Estel joined in a deed of conveyance of the tract described in the complaint herein to Joseph E. Lewis and wife, who were plaintiffs' immediate predecessors in title.
The instant suit stems from the fact that on September 7, 1866, the date of the deed to Charles Estel, Robert Estel did not have full title to the entire parcel which he and his wife purported to convey. As to the northwesterly corner of said parcel, a five-acre section hereinafter referred to as the disputed area, Robert Estel had record title only to an undivided one-third interest. Title to the remaining two-thirds interest
in said disputed area was in one William B. Hill by virtue of a sheriff's deed dated November 1, 1852, and recorded November 23, 1852. The record discloses that the disputed area had a frontage of 634.4 feet on the southerly side of what is now Route 88 and was unenclosed woodland.
Plaintiffs' contention is that after the deed of 1866 and down to 1958 the Charles Estel family continuously occupied the entire tract as owners, lived in a farmhouse located on the northeasterly corner of said tract, farmed the tract, cut wood in the disputed area and sold the same, paid taxes thereon, and exercised other acts of exclusive dominion, including the recorded grant in 1909 by Charles Estel and wife, of a railroad right-of-way, which grant ran directly through the disputed area. Thereafter said right-of-way was cleared off and graded and bridges were built over brooks although no tracks were ever laid. The right-of-way had the appearance of a road through the property and was visible from Route 88. Plaintiffs also showed that the Estels in 1917 granted easements of record for poles and wires to the New York Telephone Company and Jersey Central Power and Light Company, which grants also encompassed the disputed area. Space for advertising signs was let by the Estels along the southerly side of Route 88, some of the signs being located in the disputed area.
There is nothing in the record showing that William B. Hill or his heirs ever were in actual possession of the disputed area or made any claim of co-ownership thereto or proprietary right therein. However, in April 1955 and December 1956 the heirs of William H. Hill joined in bargain and sale deeds of conveyance of lands, which included the disputed area, to Lylian Alsofrom, one of the defendants herein.
It is generally held that possession by one cotenant is not considered adverse to the other cotenant but is presumed to be in accordance with his right as a part owner to possession of the whole undivided land. Heck v. Cannon , 24 N.J. Super. 534 (Ch. Div. 1953). However, a conveyance of the whole estate by a cotenant constitutes, upon the recording of
the deed, an act of disseizin of the other cotenant. Foulke v. Bond , 41 N.J.L. 527 (E. & A. 1879). The entry of the grantee under such conveyance evinces an intent to claim the whole to the exclusion of the other cotenant. Thereafter possession by the grantee for the statutory period, provided such possession is continuous, open and notorious, and without interference by the other cotenant, may result in a title by adverse possession. Foulke v. Bond, supra , at p. 540. All of these principles apply to the 1866 conveyance of Robert Estel and wife to Charles Estel, and the subsequent possession of Charles Estel and his heirs.
Defendants contend that the rule of Foulke v. Bond does not apply, and the deed of 1866 as recorded was not an act of disseizin of the cotenant Hill because the grantor had title to 25 of the 30 acres included in said deed, and it was only as to a five-acre tract that he was a cotenant. Defendants cite Schmitt v. Traphagen , 73 N.J. Eq. 399 (E. & A. 1908), for the proposition that when a deed conveys not only the land which is the subject of a claim based on adverse possession but also land to which the ...