Fittichauer v. Metro. Fireproofing Co.

• Citation: 61 A. 746,70 N.J.E. 429
• Parties: FITTICHAUER v. METROPOLITAN FIREPROOFING CO. et al.
• Decision Date: 31 August 1905
• Court: New Jersey Court of Chancery

61 A. 746

70 N.J.E. 429

FITTICHAUER

v. METROPOLITAN FIREPROOFING CO. et al.

Court of Chancery of New Jersey.

Aug. 31, 1905.

Bill by Felix Fittichauer against the Metropolitan Fireproofing Company and another. On demurrer to the bill. Overruled.

Robert H. McCarter, for demurrant. Frank P. McDermott, opposed.

STEVENSON, V. C. My conclusion is that the demurrer should be overruled.

1. It will probably be a useful preliminary to the present investigation if we consider the nature of the statutory action provided by the act of March 2, 1870 (P. L. p. 20), commonly referred to as the "Act for Quieting Titles," under which the complainant's bill is filed. The purpose of the statute is not only to quiet titles, but "to compel the determination of claims to real estate in certain cases." The object of the statute has frequently been pointed out in the decisions of this court and of the Court of Errors and Appeals. The Legislature did not provide a new statutory action in favor of a complainant who had already an available action at law or suit in equity in which he could obtain adequate relief. Jersey City v. Lembeck, 31 N. J. Eq. 255; Van Houten v. Van Honten (N. J. Ch.) 59 Atl. 555. It may be that the statute embraces within its scope and regulates suits in equity under the ancient jurisdiction of the Court of Chancery classified as bills quia timet or bills of peace. A complainant may have an election to proceed to have a cloud removed from his title, either in the old form, according to the rules of practice and pleading which govern ordinary equity suits, or he may proceed in the very different form prescribed by this statute. This is one of several matters which I do not pause to consider.

The point to be kept in mind in examining this peculiar statute is that its main object is expressed in the first clause of its title, viz., to compel the determination of claims to real estate in certain cases. The "certain cases" are those cases of hardship where the defendant out of possession makes a claim, while the complainant in possession has no means of compelling the defendant, either at law or in equity, to submit his claim for determination, and thus have it either established as valid or finally declared void. The great object of the statute is not to afford the complainant a new means of asserting and establishing his title, but to afford the complainant a means of compelling the defendant to either abandon or establish his title or have it decreed invalid. The procedure prescribed by this statute in this peculiar suit, in my opinion, has almost uniformly been disregarded in the suits brought under its provisions since its enactment, during the last 35 years. What the bill of complaint shall contain is expressly prescribed in the act, and why in all these reported cases it appears that the bill has gone far beyond the statutory requirements I am entirely unable to perceive. The act reads as follows: "The bill of complaint in such suit shall describe the lands with certainty and shall name the person who claims, or is claimed or reputed to have, such title or interest in or incumbrance on said lands, and shall call upon such person to set forth and specify his title, claim or incumbrance and how and by what instrument the same is derived or created." This prescribed demand in the bill, that the defendant shall set forth his title, in the light of the other phraseology of the act, shows plainly that the bill is not required or expected to enter into the details of the defendant's claim. Any allegation in the bill of the particular character of the defendant's claim is practically surplusage. The defendant undoubtedly has a right to disregard all such allegations, and in his answer "set forth and specify" any title, claim, or incumbrance which he may wish to endeavor to sustain. The bill may say that the defendant claims under a mortgage or a judgment, but the defendant may in his answer set up an entirely different title by a deed of conveyance.

I think that great confusion has been made by this persistent effort of the complainant to state unnecessarily in his bill the claim which the defendant has made, or is "reputed" to have, in respect of the land in question. If the complainant proves the Jurisdictional facts, the result is that the defendant is called upon affirmatively to set forth and maintain by proofs any adverse title or claim which he holds. The pleading of the defendant, if it sets forth a legal title, may be in effect a declaration in ejectment, and, if it sets forth an equitable title, it may be in effect a bill in chancery. The complainant is under no obligation even to exhibit his own title until after the defendant has shown title. All that the complainant is obliged to show in the first instance is that he is in peaceable possession, and that no suit is pending in which the defendant's claim, whatever it may be, may be tested, and, also, that he, the complainant, is unable to bring an action at law in which the test can be applied (Jersey City v. Lembeck, supra); and also I think that he, the complainant, is unable, except under the statute, to bring any suit in equity in which such test can be applied (Van Houten v. Van Houten, supra). When the complainant has shown these jurisdictional facts, he awaits the presentation by a proper pleading of the defendant's claim or title before making any disclosure of his own title. Ward v. Tallman, 65 N. J. Eq. 310, 55 Atl. 225. Any defendant may avoid all expense, if he sees fit to abandon his claim; and in such case a decree pro confesso goes against him without costs. Any defendant, also, who wishes to resent being unnecessarily brought into court, may file an answer denying that he has ever made any claim to the land in question, and thereupon he becomes entitled to costs; the complainant not being allowed to contest the truth of such denial in order to obtain costs.

Coming, now, to the case where litigation occurs in this statutory action, we find that the statute also prescribes some things which the litigating defendant must allege in his answer. He is required in his answer to "specify and set forth" his estate or interest, etc., and also set forth "the manner in which and the sources through which such title or incumbrance is claimed to be derived." If the defendant in this affirmative pleading sets forth a legal title, either party has the absolute right to have an issue at law for the settlement of this legal controversy, and, subject to the power to order a new trial, the Court of Chancery is "bound by the result of such issue." Where the complainant sets forth an equitable claim—i. e., a claim which he can only assert and have established by a suit in equity—then, in my opinion, neither party can compel the Court of Chancery to submit finally to the decision of an equitable cause of action by the verdict of a jury in a court of law. Van Houten v. Van Houten, supra. If the affirmative pleading of the defendant, which the statute prescribes, sets forth a legal claim, and neither party applies for an issue at law, or if such affirmative pleading sets forth an equitable claim, then the Court of Chancery is to proceed with the suit on the part of the defendant which is thus brought. The statute leaves no doubt as to the course of procedure. It provides that, "when such issue is not requested or as to the facts for which the same is not requested, the Court of Chancery shall proceed to inquire into and determine such claim, interest and estate according to the course and practice of that court." What is the "course and practice" of a court of equity, where a party comes forward as the actor, asserting affirmatively his title or interest in real estate, for the purpose of having such title or interest determined? The complainant, as we have seen, is not obliged to exhibit his own title in his bill, and ought not, in my opinion, notwithstanding the practice which has prevailed, to unnecessarily undertake to set forth in detail the defendants' claim. A court of equity, "according to the course and practice" which courts of equity have uniformly followed, ought to require the complainant to file a pleading joining issue with the defendant. It is immaterial whether this pleading be called a special replication, a statement (see rule 221, regulating interpleader suits), or a bill of particulars. Where the defendant sets forth an equitable claim, in large numbers of cases the pleading of the complainant in reply thereto would be, in effect, an answer to a bill in chancery.

Where the defendant denies the jurisdictional facts of peaceable possession by the complainant and nonpendency of any test suit and incapacity of complainant to bring a test suit at law or in equity, the practice is settled that the court will try in the first instance the issue of jurisdiction thus presented, and will not go into the question of the respective titles of the parties until the jurisdictional question has been decided. Allaire v. Ketcham, 55 N. J. Eq. 169, 35 Atl. 900; Sheppard v. Nixon, 43 N. J. Eq. 627, 13 Atl. 617. In Blakeman v. Bourgeois, 59 N. J. Eq. 473, 45 Atl. 594. although the answer of the defendant, after denying the plaintiff's peaceable possession, set up the defendant's title, Vice Chancellor Grey confined the hearing to the question of possession, and having settled that question in favor of the complainant, advised a decree that the complainant had a right to bring the suit. Subsequent proceedings in the suit are indicated in Schmalz v. Wooley, 56 N. J. Eq. 649, 39 Atl. 539. In Beale v. Blake, 45 N. J. Eq....