Conford, Collester and Kolovsky. The opinion of the court was delivered by Conford, P.J.A.D.
Plaintiff Garden of Memories, Inc. ("Garden of Memories") appeals from a judgment of the Chancery Division dismissing "with prejudice" its complaint filed under N.J.S.A. 2A:62-1 et seq. to quiet title to 30.786 acres of vacant land in North Brunswick.
The complaint asserted that plaintiff's title to the land was "denied or disputed" by defendant Forest Lawn Memorial Park Association ("Forest Lawn"), and it contained the
recitals, jurisdictional under the statute, of peaceable possession in plaintiff and absence of pending action to enforce or test the validity of defendant's title or claim. While the complaint also recited that both corporations were organized as cemetery associations pursuant to N.J.S.A. 8:1-1 et seq. , there was no proof thereof as to plaintiff corporation, and the contrary was asserted by plaintiff on a motion (which was denied) to "present new evidence" and for amended findings and conclusions. Concededly, Forest Lawn was organized under the cemetery association act.
In its filed opinion the trial court essentially decided that plaintiff, although holder of record title to the property in question since April 15, 1952, had taken its interest with constructive notice from the public title records of a prior interest of Forest Lawn as contract vendee of the property under an unrecorded contract executed June 21, 1946, some of the terms of which were reflected by recitals in certain recorded deeds and a recorded mortgage hereinafter described.
At the trial the parties stipulated in evidence recorded title instruments which may be summarized as follows.*fn1
Both parties claim title to the property in question through common grantors, Arthur Jarett and associates. Jarett acquired title to 39.79 acres, including the land in controversy, together with "all cemetery permits affecting" the entire parcel on July 9, 1946. On that same day, Jarett and his wife declared a trust as to three undivided one-fourths of the 39.79 acres on behalf of three associates, each of whom had contributed one-fourth of the purchase price.
Jarett, his wife and associates conveyed 4.003 acres of the 39.79 acres to Forest Lawn on August 8, 1946. Two other deeds from the same grantors to the same grantee conveyed another 1.5 acres and 3.5 acres, respectively, of the 39.79 acres on October 22, 1947. Moreover, each of the deeds contained (verbatim or substantially) the following clause:
"This deed is given as a partial conveyance of a tract of land immediately adjoining [sic]*fn2 the within described premises and containing 39.79 acres of land and the balance of said lands has this day been conveyed to the party of the second part by the party of the first part, but which deed of conveyance is held in escrow by Isidore M. Dubrow, Esq., attorney for the party of the first part and which deed will be given to the party of the second part upon full payment of a mortgage in the sum of $30,000.00 this day given by the party of the second part to the party of the first part and it is also represented and warranted that at the time of the delivery of the said deed held in escrow, the permit for the use of said lands for cemetery purposes will be good, and valid and in full force and effect, provided that the said permit shall not be invalidated by any act of the party of the second part."
No such escrow deed was ever recorded or offered in evidence in this case. However, a purported purchase money mortgage in the amount of $30,000, recited as executed and delivered by Forest Lawn to Jarett on August 8, 1946, and covering the 39.79 acres, was recorded on August 12, 1946. The mortgage recites:
"This is a purchase money mortgage given to secure the sum of $30,000.00 owed by the Mortgagor to the Mortgagee as the balance of the Purchase Price under a contract of sale entered into by Arthur W. Jarett and Arthur Weisler on the 21st day of June, 1946, and assigned by the said Arthur Weisler to the Grantee herein.
There has actually been conveyed at the time of the execution of this mortgage 4.003 acres of the tract herein described, and the balance of the tract herein described is to be conveyed to the said Mortgagor in accordance with the terms of the said contract. The balance due at any time under the said contract shall be considered a lien upon the entire tract herein described, until the full amount of this mortgage in the sum of $30,000. shall be paid in full."
The mortgage also provides for the release of any part of the premises upon the payment by the mortgagor of "$5.00 per grave" (3 I/2'x8'). The mortgage calls for a schedule of payments the last of which was to come due August 1, 1949.
Jarett and his associates conveyed the 30.786 acres to Lillian B. Linker by deed of March 16, 1951, the description thereof being by metes and bounds for the 39.79 acres but made subject to a recital "exempt[ing] from this contract" 9.004 acres "previously conveyed" by the grantors to the "Forest Lawn Memorial Park" by deeds recorded in three specified books at specified pages. After mesne conveyances one Myron Fox and his wife conveyed the 30.786 acres to Garden of Memories by deed dated April 15, 1952 and recorded May 22, 1952. The deed first describes the property conveyed by metes and bounds for the 39.79 acres and then excepts and reserves out four tracts, each described by metes and bounds (for 4.003 acres, 1.500 acres, 1.5 acres and 2.00 acres, respectively) and identified therein as premises ...