Island Development Co. v. McGeorge
| Decision Date | 09 July 1928 |
| Docket Number | No. 3652.,3652. |
| Citation | 26 F.2d 841 |
| Parties | ISLAND DEVELOPMENT CO. et al. v. McGEORGE. |
| Court | U.S. Court of Appeals — Third Circuit |
Thompson & Hanstein and Walter Hanstein, all of Atlantic City, N. J. (Clarence L. Cole, of Atlantic City, N. J., of counsel), for plaintiffs in error.
William M. Clevenger, of Atlantic City, N. J., and James Mercer Davis, of Camden, N. J., for defendant in error.
Before BUFFINGTON and WOOLLEY, Circuit Judges, and DICKINSON, District Judge.
The plaintiff had judgment and the defendants sued out this writ of error. As the case must be tried again we shall state the issues in detail and discuss all questions raised by the assignments of error.
Percy McGeorge brought this action of ejectment against the Island Development Company and Altantic Brigantine Bridge Company to recover land known as Boot Island, being one of many islands which form the broken shore line of New Jersey. The tract is meadow land, uncultivated and uninhabited, covered in part by every high tide and completely covered by every storm tide. The land acquired importance enough to bring it into litigation when the defendants constructed across it a boulevard which is the only connecting link between Atlantic City and the city of Brigantine.
Following the habit of ejectment cases, perplexing questions of many kinds arose at the trial and now are here for review. Before approaching their consideration we naturally looked at the law of New Jersey applicable in such actions and then carefully studied the pleadings. In doing so we found that evidently the draftsman of the plaintiff's pleadings had made a like study of the law before stating his client's case. That law is briefly stated in Troth v. Smith, 68 N. J. Law, 36, 52 A. 243, a suit in ejectment on a paper title to land which, as in this case, was wild, unimproved and unoccupied. The court in its opinion first declared familiar law of ejectment, such as, the plaintiff must recover on the strength of his own title, and if the plaintiff fails to establish a good paper title when he relies wholly on such a title, judgment must go against him. The court then said:
"It is equally well settled that the plaintiff must trace his paper title back to some one who is shown to have been in possession of the locus in quo, or failing in that, he must show that his grantor acquired title from the original proprietors."
Many years back in the chain of a paper title on which the plaintiff in that case relied, the land in dispute was a part of a tract which by a decree of a court of competent jurisdiction had been partitioned and assigned to the heirs of one of the plaintiff's predecessors in title. The court, speaking of the partition proceedings, said:
With this law before him, the plaintiff in the instant case filed a narr in ejectment, termed in New Jersey a complaint, and conformably with local practice later filed his "particulars of title" setting forth three claims of title in the nature of as many counts in a narr. As the land of one of his predecessors in title had, as in Troth v. Smith, been partitioned and assigned to his heirs, the plaintiff, following the quoted law that he must trace his paper title back to some one who is shown to have been in possession of the premises in dispute and that such possession may, prima facie, be shown by the possession of the partition commissioners, first drafted a claim of title running back to one William Porch, an intestate decedent, whose property had been partitioned by the Prerogative Court of the state of New Jersey and set off in severalty to one Jacob Porch and thereafter moved from him down to the plaintiff.
Preferring for his own reasons not to rely solely on the paper title thus particularized in the first claim, the plaintiff, still with an eye on the law of Troth v. Smith which says that, failing to trace his paper title back to some one who is shown to have been in possession of the locus in quo, "he must show that his grantor acquired title from the original proprietors," set forth in another claim a paper title originating in a survey by the West Jersey Proprietors to one John Simpson in the year 1741, claiming that the land so surveyed was the island known as Boot Island which includes the land in question. The chain of this paper title purports to run down to the proceedings partitioning the lands of William Porch and through those proceedings to the plaintiff. Thus two paper titles of different lengths were pleaded, the longer embracing the shorter; the shorter possibly being good without the longer, but the longer not being good unless the shorter is good also.
Doubtless for greater assurance, the plaintiff then drew a third claim, not of a paper title but of title by actual, exclusive, continued, uninterrupted, visible, notorious, hostile and adverse possession of the land in question in one John J. Gardner, a predecessor of the plaintiff, for more than twenty years prior to his death in 1921 and like possession in others and finally in himself from that year to the present time.
Thus the plaintiff stated and relied on three distinct titles, that of adverse possession being of course separate from the other two and the other two being separate from each other. For we hold, contrary to the contention of the defendants and in accord with the learned trial court, that it is of no consequence whether the land of William Porch acquired in 1821 and partitioned in 1854 (if it be the land in question) was any part of the original survey to Simpson in 1741 since the act of partition was, as we read Troth v. Smith, an act of possession which (under the first claim) can be treated as a source of title. Having stated three claims of title, the plaintiff might have recovered on any one of them if he had proved the chain of either paper title without a broken link, or failing that, if he had proved possession for a time and of a quality that showed title in him by adverse possession. When the case came to trial the plaintiff, as he now admits in one of his briefs, did not sustain his claim to title by adverse possession through Gardner, for his evidence of possession did not measure up to the requirements of such a title (Foulke v. Bond, 41 N. J. Law, 545), and therefore that claim finally dropped out of the case, leaving for trial the two paper titles.
The survey to Simpson in 1741 was of an island debatably uncertain as to location, sketchy as to dimensions, yet with its shape shown by an accompanying map. The core of the controversy (tried as a unit when we think it should have been tried by keeping the two paper titles clear and distinct in the minds of the jury) was what lands were covered by the survey of the proprietors and assigned to Simpson, whether an island named Weak Fish Island or Boot Island, the island in question. That was an issue of fact for the jury — an issue of location and identification — with which this court, of course, has nothing to do. We are however concerned with the manner in which the trial court submitted that issue: At the threshold of its charge it tersely stated the issue as follows:
From this statement of the issues we turn to a discussion of the errors which it is alleged the court committed in the trial, not as specified by the twenty-six assignments of error, some of which overlap, but as stated and numbered in the brief of the plaintiff in error.
At the trial the plaintiff offered in evidence thirty-four tax receipts issued to him by the tax collector for Galloway township bearing dates from 1889 to 1924, inclusive. The defendant objected to the offer on the ground that payment of taxes cannot support an action in ejectment. The learned trial court agreed that they were not admissible on the question of title but, thinking them admissible "on the question of constructive or actual possession," asked counsel for the plaintiff if the offer was made for that purpose. They first answered that the receipts were offered for both purposes, and finally said:
"We are not offering them under the adverse possession, but on the ground that we had color of title."
The court admitted the tax receipts, yet when it came to the charge it very properly instructed the jury that there was no proof that any one was in possession of the property and was silent with respect to the tax receipts. And so in this situation where there was no proof of adverse possession by Gardner and his successors under the plaintiff's claim of title by adverse possession and no proof (or occasion under the paper titles for proof) of possession of any other kind by the plaintiff, the tax receipts remained in the case. That they were not admissible as evidence of title is clearly established by decisions of the Supreme Court and the Court of Errors and Appeals of New Jersey in Troth v. Smith, 68 N. J. Law, 36, 38, 52 A. 243, and Parrot v. Nugent, 91 N. J. Law, 302, 305, 102 A. 899. That they were not admissible in proof of possession was also decided in Parrot v. Nugent, supra. As these are state rules of evidence announced by high courts of a state (Erie Railroad Co. v. Hilt, 247 U. S. 97, 38 S. Ct. 435, 62 L. Ed. 1003) in respect to real...
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Girard Trust Co. v. McGeorge
...This suit was tried, resulting in favor of McGeorge; the judgment was reversed by the Circuit Court of Appeals, Island Development Co. v. McGeorge, 3 Cir., 26 F.2d 841, and the suit permitted to drag until September of 1935 when, by consent, a judgment was entered against the defendants nam......