On appeal from the Superior Court, Chancery Division, Ocean County.
Fritz, Furman and Deighan. The opinion of the court was delivered by Furman, J.A.D. Deighan, J.A.D., concurring.
In consolidated actions to quiet title to a contiguous 4,085 acre parcel partially in Burlington County and partially in Ocean County, an individual answering defendant and two groups of answering defendants appeal to us from partial summary judgment quieting title in favor of plaintiff B. and H.S. Corporation. We are constrained to reverse and remand because of open, unresolved issues of material fact. See Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74-75 (1954).
In a 1960 action to quiet title to the same property, John Dougherty, a professional title searcher in Burlington County and one of plaintiff's predecessors in title, was awarded judgment by default. None of the present defendants or predecessors in their chains of title after William Griffith were named defendants in the 1960 action. The defendants in that action were designated as the successors in interest of William Griffith, who was owner of the property from approximately 1819 to 1824. In 1824 the property was executed on for a judgment debt of Griffith and conveyed by sheriff's deeds in both counties.*fn2 The sheriff's deed was misindexed in the sheriff's, not Griffith's, name in Burlington County. In the litigation on appeal before us defendants are the successors in interest of William Newbold, the purchaser at the sheriff's sale in 1824.
Dougherty claimed ownership in his 1960 quiet title action through a 1957 deed to him from Richard Cox and William Cox, not otherwise identified. Griffith died testate in 1826. He devised his real property to his son-in-law Richard S. Cox. The subject 4,085 acre parcel was not part of Griffith's estate and did not pass to Cox at Griffith's death. There is no conveyance of record in the Cox chain of title in the intervening more than 130 years from 1826 to 1957. At depositions in the present
litigation Dougherty invoked the privilege against self-incrimination in refusing to respond to any questions or to identify his signature.
As we understand the trial judge's oral opinion, he assumed that the present defendants as successors in interest to William Griffith were barred by the 1960 quiet title judgment unless that judgment was subject to collateral attack on the ground of fraud by Dougherty. He precluded such collateral attack, holding as a matter of law that plaintiff, as purchaser for the amount of $237,000, who, according to the record, had neither participated in nor had knowledge of any fraud by Dougherty, held title free and clear of the claim that the 1960 quiet title judgment was fraudulently obtained.
We view the issues more broadly as including whether Dougherty had actual or constructive notice of the present defendants' adverse chain of title. N.J.S.A. 2A:62-13 exempts from the bar of a quiet title judgment any person "whose title, claim or encumbrance would be disclosed by a search of the title of such lands for a period of 60 years immediately prior to the commencement of the action, who is not made a party defendant." Plaintiff's position is that a 60 year title search from 1960 would have disclosed only the Dougherty chain of title; that even a 136 year title search would not have disclosed defendants' chain of title because of the misindexing of the Burlington County sheriff's deed of 1824; that defendants' chain of title backward ended in William Newbold as grantee; and that defendants were cut off by the 1960 quiet title judgment as holders of an interest in the property not of record.
We disagree that defendants should be barred by operation of the statute governing actions to quiet title, N.J.S.A. 2A:62-1 et seq. According to the undisputed record, the correct chain of title was from Griffith by sheriff's deed to Newbold to the present defendants and not from Griffith to Cox to Dougherty. A quiet title judgment by default based
upon a chain of title with a gap of over 130 years from a remote grantor should not be valid against those holding adverse interests through a chain of title, although misindexed, from the same grantor, under the circumstance that the plaintiff had actual notice of the adverse chain of title or constructive notice apart from the title records, e.g., from municipal tax records or from development or cultivation at the site. See VanDyke v. Carol Building Co., 36 N.J. Super. 281, 286 (App.Div.1955). Nor would we preclude in the present litigation a fact finding, in accordance with expert testimony, that Dougherty in the exercise of reasonable professional competence and skill as a title searcher should have been on notice of the present defendants' chain of title from Griffith by sheriff's deed to Newbold. It is significant that the Bureau of Titles in the Department of Transportation concluded prior to the institution of the present action that plaintiff had a chain of title but no marketable title.
In our view the 1960 quiet title judgment obtained by Dougherty would not bar the present defendants if the determination of one or a combination of several unresolved fact questions establishes that Dougherty had actual or constructive notice of defendants' adverse claim of title. We refer to the following, but not as an exclusive enumeration.
Did Dougherty have actual notice of defendants' chain of title? Although the trial judge alluded to the premises as unimproved pinelands, was there in fact development by building or cultivation on any part of the property? Were there municipal tax records showing ownership in any defendant or predecessor in title since 1824? Who were Richard and William Cox, the grantors to Dougherty in 1957? Were the Coxes or either of them in peaceable possession prior to 1957? Was the sheriff's deed to the then Monmouth County portion of the property indexed under Griffith's name in Monmouth County, as one of the present defendants contends it was? Was the judgment ...