On appeal from Superior Court, Law Division, Ocean County.
Lora, Seidman and Milmed. The opinion of the court was delivered by Seidman, J.A.D.
Defendants W. Elmer Seaman, Sr., and Emma T. Seaman, his wife, appeal from a final judgment entered in favor of plaintiff Robert D. Spiegle for $7,695 plus interest in the amount of $2,867.40. The judgment followed a nonjury trial of plaintiff's complaint charging defendants with breach of warranty in connection with the sale to him of a tract of land in Union Township, Ocean County.
The lands in suit were acquired by defendants in 1961 and sold by them to plaintiff on December 6, 1963 for $18,000. The conveyance was by a "plain warranty" deed which contained the following description:
ALL that tract or parcel of land and premises, situate, lying and being in the Township of Union, County of Ocean and State of New Jersey.
BEGINNING at the point of beginning of a tract of 770 acres, being the second tract in deed from Township of Union to Raymond D. Kelly and wife, dated June 10, 1949 and recorded in Deed Book 1326, page 348, said point being in the Northerly side of the straight road from Cedar Bridge to Barnegat and runs along the first line
of said tract North 14 degrees 42 minutes West 1690 feet more or less to a point in the middle of N.J. State Highway Route S40 and runs along the middle of said highway thence (2) South 60 degrees 35 minutes East 2,532 feet more or less to the 8th corner of lands conveyed by Raymond D. Kelly and wife to Yves Nedellec, et al, in Deed Book 178 page 301 thence (3) South 82 degrees 58 minutes West 374 feet to an old stone thence (4) South 6 degrees 32 minutes East 718 feet to a stone at the intersection of the Warren Grove road with the straight road from Cedar Bridge to Barnegat and runs thence (5) along the Northerly side of the straight road from Cedar Bridge to Barnegat North 75 degrees 42 minutes West 1,536.05 feet to the point and place of beginning.
EXCEPTING therefrom so much of the following tracts as may be included in the above, as follows; -- 91 25/100 acres part of 161 13/100 acres returned to the Executors of John Rattoone, deceased, June 2, A.D. 1824 recorded in the Surveyor General's Office at Perth Amboy in Book S 20, Page 95; 90 25/100 acres part of 175 38/100 acres returned to Robert Boggs, December 22, A.D. 1828, recorded in said Office in Book S 20, page 295; 7 25/100 acres part of 50 86/100 acres returned to the heirs and assigns of Edward Taylor, recorded in Book S 20, page 170 and 275 acres formerly conveyed by John Rutherford, Andrew Bell and James Parker to John Collins, John Tilton and others. [Emphasis supplied]
Subsequently plaintiff contracted to sell a portion of the premises in question for $240,000. A title search uncovered a cloud on the title, as a result of which a policy of title insurance could not be obtained and the prospective purchaser refused to consummate the transaction. Plaintiff thereupon filed the complaint involved herein seeking damages. He alleged that he had received from defendants a "full warranty deed whereby the grantors * * * warranted the title to such premises to be free and clear of any and all liens, encumbrances and claims of any sort and description and that the title thereto was marketable." He asserted a breach of that warranty. In their answer defendants, among other things, denied that the conveyance to plaintiff had been by full warranty deed. They alleged that they "at no time warranted anything other than that which was described in the contract of sale and warranty deed."
At the trial, plaintiff maintained, more specifically, that defendants had breached their warranty by selling to him
44 acres of land of which 29.5 acres were not owned by them. The position taken by defendants was that the disputed acreage was within one of the exceptions contained in the deed description and that "the warranty does not apply because we are not warranting title to anything lying within the exception." They contended that their intention was to convey only that acreage which they owned. At the conclusion of the trial the trial judge issued a letter opinion in which he found as a fact that defendants did not have title to 29.5 of the 44 acres and also that the exception on which defendants relied did not relate to the acreage in dispute. He accordingly found "a breach of warranty of title on the part of the defendants herein." At a later date, after hearing further testimony on the issue of damages, the trial judge ordered the entry of the judgment which is the subject of this appeal. The amount of the award is not an issue on the appeal.
Defendants contend that the trial judge "erroneously entered judgment based on a breach of warranty," in that a covenant of warranty is breached only when there is an eviction, actual or constructive, under a paramount title, and that there was no evidence before the court "which would support an eviction necessary to allow judgment under a warranty deed." They contend, further, that plaintiff "failed to show by a preponderance of evidence that there was any defect in the title granted to plaintiff by defendant." As to the first contention, plaintiff's response is that "defendant failed to assert his defense of failure to state a claim upon which relief can be granted at trial and cannot now raise it on appeal." He argues, with respect to the second contention, that defendant "failed to challenge adequately the admissability [ sic ] of either plaintiff's or ...