Conford, Collester and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d.
Defendant Kasdin purchased a tax sale certificate from the Township of Randolph on behalf of defendant Muss December 30, 1958. On October 30, 1961 Kasdin instituted an action to foreclose the certificate, which covered property denominated on the municipal tax records as "Black River -- 28.8 acres -- Block 7, Lot 6" and assessed to "unknown." A final judgment was entered by default in the foreclosure proceedings against "Unknown Owner" on April 23, 1962.
On January 13, 1965 plaintiff, claiming to be the owner of the property, brought the present action to vacate the foreclosure judgment on the grounds that she had a right to redeem the property and had been improperly omitted as a party defendant in the foreclosure action. Judge Waugh held in her favor and entered judgment in the Chancery Division declaring: (1) plaintiff and her late husband David M. Manning (who died April 12, 1959) were the holders of a two-thirds interest in Block 7, Lot 6 by virtue of a deed recorded September 11, 1957; (2) they continued
to hold that interest when defendants purchased the tax sale certificate; (3) that interest could have been ascertained by a reasonably diligent search of the premises in accordance with N.J.S.A. 54:5-91 and (4) plaintiff should have been named and served with process as a defendant in the foreclosure action. It was therefore adjudged that the judgment of foreclosure be vacated and that plaintiff should be permitted to redeem the lands from the tax sale certificate on the terms that she reimbursed defendants for the moneys they paid the township for taxes with 6% interest, and for their costs in obtaining title in the foreclosure action, plus reasonable search and counsel fees therein, but without costs to either party in the current action.
Defendant Muss now prosecutes this appeal alone. He is a civil engineer and surveyor, was formerly the engineer for Randolph Township, and prior to the foreclosure sale had been entrusted with revising the tax map for the municipality. Defendant's appellate brief framed his statement of questions involved and developed his argument on two basic points: (1) that plaintiff lacked the interest in the lands necessary for redemption because her paper title did not go back to the Proprietors and she failed to prove title by adverse possession; (2) plaintiff was estopped from claim of ownership because she or her husband had disclaimed ownership, thereby "inducing" Muss to acquire the property and expend funds on its improvement. There was only a tangential exception in that brief to the trial court's finding that plaintiff's interest in the property was ascertainable by the exercise of reasonable diligence by Muss and that she should accordingly have been joined in the tax foreclosure. However, since that determination was challenged in the reply brief and at oral argument (belatedly, we think), we shall lay the point at rest for the benefit of the bar.
Some further development of the facts is necessary.
Two title experts testified on behalf of plaintiff. From their testimony and title records admitted in evidence the following appears. The record title interest of plaintiff and her husband (collectively referred to hereinafter as the Mannings) in the locus in quo derives from a deed to them recorded September 11, 1957 from George M. Harvey and others conveying a two-thirds interest in certain lands (the Mannings obtained the other one-third interest by subsequent deeds from various other holders thereof). Plaintiff's experts concluded, after an extended demonstration from and analysis of other title instruments, that the "Third Lot" mentioned in the 1957 deed from Harvey and Lot 6, Block 7 were "one and the same." The description in that deed of the "Third Lot" is by incorporation by reference of the description in a March 1832 deed from Gilbert Budd to John Corwin, and repeated verbatim in mesne deeds, but subject to an exception for a five acre tract conveyed out of the Third Lot by Isaac Corwin to Sylvester Harvey in 1884. The 1832 deed description does not read in terms of specified compass courses and fixed distances. The land is referred to as all of Budd's land "laying in the Swamp on the East side of Black river," and the description proceeds in terms of reference to the locations of lands of bounding property owners. The deed recites that the tract is "supposed to contain between three and four acres be the same more or less" (this estimate is apparently wrong as the 1884 conveyance out of the tract itself purports to encompass five acres). The description in the 1832 deed contains four calls to other lands of John Corwin, the grantee.
Distinct from the locus in quo, the Mannings on June 10, 1939 acquired by deed from Elizabeth Spingler a farm of some 60 acres and a farmhouse in which they resided most of the period of time since. That property is identified on the tax map as Lot 10, Block 6. It appears on the tax map directly east of and contiguous to Lot 6, Block 7, the property here in question. In the 1957 deed from Harvey
was also included a 16-acre tract identified on the tax map as Lot 7, Block 7. The Mannings had, however, been assessed for it since 1951. That parcel is north of and contiguous to Lot 10, Block 6 and east of and contiguous to Lot 6, Block 7. Plaintiff's expert Buck plotted the locations of these three tracts and other surrounding titles on his Exhibit P-16. Parcel A thereon is the main Manning homestead; Parcel C, the locus in quo; and Parcel B, the other tract conveyed to the Mannings by the 1957 deed. The three parcels constitute a contiguous assemblage bounded on the west by the Black River (Parcel C being westernmost). John Corwin was formerly a common holder of record title to all three parcels by deeds of grant in 1808 (Parcel A), 1815 (Parcel B) and 1832 (Parcel C).
It is of interest that the 1957 deed to the Mannings recites that it is made for the purpose of correcting an inadvertent omission by the grantors' ancestor, William Collis Harvey, in conveying in 1919 the present Manning homestead to Godin, Fox and ...