[91 NJSuper Page 101] In this case, which I believe to be of novel impression, plaintiffs as sellers of real estate under contract seek summarily to dispossess the purchasers who have defaulted in their monthly payments on account of the purchase price. Plaintiffs contend that defendants unlawfully detain the property in violation of N.J.S. 2A:39-4 and 5, and are therefore entitled to dispossess defendants under N.J.S. 2A:39-6. Thus, the situation here presented is not predicated upon an attempt to convert the relationship of seller and buyer into that of landlord and tenant, as in Snedeker v. Quick, 12 N.J.L. 129 (Sup. 1831); DeLaine v. Harris, 9 N.J. Misc. 295, 152 A. 860 (Sup. Ct. 1931), and Young v. Columbia Investment Co., 77 N.J.L. 410 (Sup. Ct. 1909).
Plaintiffs basically rely on the statement appearing in 18 N.J. Practice (Fulop, District and Municipal Courts), 164, wherein he states that summary proceeding to dispossess, as for unlawful detainer, is available by a seller against a defaulting purchaser. That statement is more fully discussed below.
Two species of unlawful detainer are defined in N.J.S. 2A:39-4 and N.J.S. 2A:39-5, respectively. The former section need not concern us here because it has to do with "any tenant or other person in possession * * * under a tenant." Clearly, defendants were neither tenants nor in possession under a tenant.
If plaintiffs are entitled to relief, defendants' occupancy must come within the definition laid down in N.J.S. 2A:39-5 which, in substance, provides as follows:
"A person taking possession * * * without the consent of the owner or without color of title, [who] willfully and without force [holds or detains] * * * after demand and written notice * * * shall be guilty of an unlawful detainer." (Emphasis supplied)
In construing this section Judge Fulop makes this statement, op cit., § 1622, p. 164:
"A slight change in the wording of this section from that in the statutes from which it was taken may have enlarged the scope of the action. The prior statutes required an entry without color of title and without the consent of the owner, his agent or duly authorized attorney, plus willful detainer after demand and notice. The revised statute refers to an entry 'without color of title or without the consent of the owner.' It would seem to follow that one entering with the consent of the owner but without color of title may be guilty of an unlawful detainer, if he refuses to deliver up possession after written demand. Thus, one who enters as a licensee or as a prospective purchaser who defaults in his purchase agreement may be removed under this section."
Defendants Schreck took possession under a contract of sale and therefore were clearly in possession with the consent of the owners. Thus, if their detainer is to come within the definition of section 5, it must be found that they entered
without color of title. "Color of title" is something less than actual title. "Color" is defined in 15 C.J.S., p. 235, as follows:
"* * * In a derived sense, 'color,' in legal parlance means 'appearance' as distinguished from 'reality'; guise; appearance; pretense; not the thing itself, or the right to the thing, but only an appearance thereof; semblance; show; implying in the language of the law that the thing to which it is applied has not the real character imputed to it. * * *"
And thus color of title would seem to be something less than the adjudicated absolute right or title. Hence the right of entry under section 5 need be nothing ...