Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.
[94 NJSuper Page 30] Plaintiff appeals from a Chancery Division judgment dismissing its complaint in a quiet title action.
Plaintiff corporation claims to be the successor in title to six lots, located on the west side of Fourth Street, between Second and Third Avenues in Bridgewater Township, Somerset County, conveyed to it by Fred and Mildred G. Kautzman. The Kautzmans were grantees under a duly recorded deed from Kate Herrmann, widow of Carl F. Herrmann, also known as Charles F. Herrmann, dated July 12, 1947. Herrmann, who had procured title to the premises in 1911, died intestate January 18, 1924, leaving him surviving his widow Kate and his son Karl. The son died May 19, 1944, survived by his mother, Kate Herrmann, who thereafter in 1947 conveyed to the Kautzmans. Kate died April 7, 1949.
In October 1965 the Kautzmans instituted a quiet title action in the Chancery Division pursuant to N.J.S. 2A:62-11 et seq., alleging that they had been in peaceable possession of the premises in question since the recording of their deed, and that no action was pending to enforce or test the validity of their title. Named as defendants were the unknown heirs, devisees, grantees, assigns or successors of Karl Herrmann. Service was attempted to be made by publication under R.R. 4:4-5(c). Four persons claiming to be parties in interest filed a joint answer.
Two weeks after the filing of the complaint the Kautzmans executed a deed to plaintiff Bridgewater Leasing Corporation, which deed was duly recorded. Plaintiff and the present defendant, Milton Wollman, were both engaged in assembling tracts of land in Bridgewater Township in an area known as the "Golden Triangle" for the purpose of competitively bidding for township-owned land in that area in order to construct a retail shopping center. Wollman had purchased the interests of some of the Herrmann heirs subsequent to the filing of the Kautzman complaint. The original complaint was amended at pretrial to name Bridgewater as plaintiff and Wollman as defendant.
The parties agree that the following accurately sets out the devolution of title after Carl F. Herrmann's death in 1924. Having died intestate, his title to the property passed to his
surviving son, Karl, by virtue of the then applicable statute, R.S. 3:3-2 (Rev. 1877, p. 297, § 1 [ C.S., p. 1917, § 1], as amended by L. 1931, c. 11, § 1), subject to the dower right of his widow Kate. Son Karl died intestate in May 1944, leaving no wife or children and seized of the lots in question. By virtue of the then applicable statutes, R.S. 3:3-6 and 8, title to the property vested in his nearest relatives by the blood of his father. There were four such relatives: Wilhelmina Schaefer, Frederick A. Herrmann, Sophia Kaul McCoy and Louisa Handloser, brothers and sisters of his father Carl.
Sophia Kaul McCoy died intestate in January 1927, leaving one child, Charlotte Kaul Frederick, who died testate in May 1951, devising all her real estate to her husband Francis J. Frederick. On September 14, 1965 defendant Wollman took a deed from Mr. Frederick of all his interest in the subject premises.
Louisa Handloser died testate in August 1945, devising her real property to two of her three children: Emma Handloser, unmarried, and Bertram F. Handloser. Bertram died in February 1962, and by his will left his real estate to his children, Louise H. Henny and John S. Handloser, and to his widow Irene. Defendant acquired Emma Handloser's interest in the premises in question by deed dated December 16, 1965 and duly recorded. He also purchased the interest of Bertram F. Handloser by deeds from the co-trustees of his estate and from Irene, his widow, both being dated February 25, 1966.
The remaining heirs, Wilhelmina Schaefer and Frederick A. Herrmann, or any of their heirs or successors, could not be located.
In order to settle the quality of the title it had acquired from the Kautzmans, Bridgewater, pursuant to leave granted in the pretrial order, filed an amended quiet title complaint on April 4, 1966, which incorporated by reference the allegations of the original Kautzman complaint as against defendant Wollman. By way of added counts ...