Joffe v. Gliksman, 148/696.

Decision Date27 February 1947
Docket Number148/696.
Citation51 A.2d 467
PartiesJOFFE v. GLIKSMAN et al.
CourtNew Jersey Court of Chancery
OPINION TEXT STARTS HERE

Suit by Cila Joffe against Fanny Gliksman and others to quiet title, wherein named defendant counterclaimed to reform a deed.

Decree advised dismissing the bill and granting relief on counterclaim.

Syllabus by the Court.

1. Where the scrivener makes a mistake in describing the lands to be conveyed, which is not due to negligence on his part, reformation will be allowed.

2. When there is a latent ambiguity in the description contained in the deed, or a doubt as to the true location of the lines evidence aliunde is admissible to show where the lines are.

David P. Kuehne, of Dumont, for complainant.

Judson B. Salisbury, of Closter, for defendant, Fanny Gliksman.

Clyde Christie, of Bergenfield, for defendants, Albert Emerizy and Ida Emerizy.

EGAN, Vice Chancellor.

This is a suit to quiet title under R.S. 2:76-2, N.J.S.A.

The defendant Fanny Gliksman by deed dated August 1, 1942, and recorded in the Office of the Clerk of Bergen County, August 8, 1942, in Book 2350 of Deeds for said County, on page 544 et seq., conveyed to the conplainant the following premises situate in the Borough of Demarest, County of Bergen and State of New Jersey:

‘First Tract: Beginning in the northwesterly line of Piermont Road where the same is intersected by the southwesterly line of lands conveyed to Jennie Catts by Dwight Moore by deed dated June 15, 1908, recorded in the Bergen County Clerk's Office in Book 695 page 356; thence (1) running North 40°42' West along the southwesterly line of lands conveyed to Jennie Catts, 456.05 feet; thence (2) North 45° West still along said southwesterly line of lands conveyed to Jennie Catts 46.92 feet to a point; thence (3) North 44°4'44? East 209.90 feet, more or less to the southwesterly line of East View Terrace; thence (4) Easterly along a curve to the left having a radius of 1040.63 feet, a distance of 86.70 feet; thence (5) South 40°34' East, 405.50 feet to the northeasterly line of Piermont Road; thence (6) South 40°39' West along said line of Piermont Road, 202.79 feet to the point or place of Beginning.

‘Second Tract: Beginning at a point in the division lien of property of the Party of the First Part herein and property now or formerly of Heinzman distant 46.92 feet on a course of North 45°00' West from the beginning point of the second course as set forth in deed dated April 1, 1938, and recorded May 8, 1940 in Book 2213 of Deeds on Page 325, and running from thence (1) North 45°00' West and along the line of land now or formerly of Heinzman, 20 feet to a stake; thence (2) North 49°26' East a distance of 213.65 feet more or less to a stake at the southerly line of East View Terrace; thence (3) Easterly along a curve to the left having a radius of 1040.63 feet, a distance of 65.95 feet to the beginning of the fourth course in the first tract above described; thence (4) South 44°04' 40? West and along the third course described in the first tract a distance of 209.90 feet to the point or place of Beginning.

‘This tract subject to a mortgage to the Home Owners' Loan Corporation which covers this tract and other property of the Party of the First Part.

‘Third Tract: Beginning at a point on the westerly line of Piermont Road distant along the same from the intersection of the same with the northerly line of property now or formerly of Heinzman and property of the Party of the First Part, on a course of North 40°39' East 202.79 feet which point is the end of the fifth course of the first tract herein described, and running thence (1) North 40°34' West 405.50 feet to a point of curve; thence (2) Westerly along said curve described as the fourth course of the first tract hereinbefore described, and as the third course of the second tract hereinbefore described, to the line of the second course in said second tract; thence (3) North 49°26' East .61 feet to the southerly line of a proposed street known as East View Terrace; thence (4) South 40°> 34' East along the said line of said proposed street, a distance of 491.09 feet to the westerly line of Piermont Road; thence (5) along the same South 40°39' West 7.10 feet to the point or place of Beginning.’ (Exhibit C-1.)

Subsequently the defendant Fanny Gliksman executed a deed changing or correcting the description of the lands aforesaid to read as follows:

‘Beginning at a point on the westerly line of Piermont Road where the same is intersected by the division line between property now or formerly of Heinzman and Martin Catts; thence (1) westerly along the division line of property now or formerly of Heinzman and Martin Catts on a course of North 40°42' West 456.05 feet to an angle point; thence (2) still along the division line between property now or formerly of Heinzman and Martin Catts on a course of north 45°0' West, 66.92 feet; thence (3) northerly on a course north 49°31'32? east, 214.26 feet to a point 158 feet southerly from the northerly line of lands of Martin Catts; thence (4) easterly and parallel with the northerly line of property now or formerly of Martin Catts and distant 158 feet southerly therefrom on a course of south 40°> 34' east 491.09 feet to the westerly line of Piermont Road; thence (5) southerly along the westerly line of Piermont Road on a course of south 40°39' west 209.89 feet to the point or place of beginning. Containing 2-42/100 acres. The above courses and distance taken from a survey made for Fanny Gliksman, by Elmer A. E. Blackwell, Engineer and Surveyor, Tenafly, N.J. dated Nov. 28th, 1941.

‘This deed is a correction deed correcting the description in a deed between the same parties dated August 1st, 1942, recorded August 8, 1942, in Book 2350 page 544 of deeds for Bergen County. And is the same lands and premises described therein by three separate tracts.’ (Exhibit C-2.)

The consideration mentioned in the ‘correction deed’ (Exhibit C-2) is the sum of $500.

The premises described in Exhibit C-2 combine the three tracts of land described in Exhibit C-1, but excludes from the description in the deed of correction aforesaid the lines described as course (2) and course (3) of the ‘Second Tract’ set forth in said deed marked Exhibit C-1.

The deed of correction (Exhibit C-2) states: ‘The above courses and distance taken from a survey made for Fanny Gliksman, by Elmer A. E. Blackwell, Engineer and Surveyor, Tenafly, N. J. dated Nov. 28th, 1941.’

On June 8, 1945, the defendant Fanny Gliksman conveyed to the defendants Albert Emerizy and Ida Emerizy, his wife, premises adjoining the property owned by the complainant, and included therein a portion of the property conveyed to the complainant as described in the deed marked Exhibit C-1, and being course (2) and course (3) of the ‘Second Tract’ of said deed marked as Exhibit C-1.

At the time of the delivery of the deed to Albert and Ida Emerizy, they executed a mortgage covering the premises conveyed to them, to the defendant Bergenfield National Bank & Trust Company in the sum of $9,000, which mortgage covers that portion of the property described as course (2) and course (3) of the ‘Second Tract’ of the deed marked as Exhibit C-1.

The complainant claims that the deed to Albert and Ida Emerizy dated June 8, 1945, and the mortgage executed by them on the premises described in the deed affects the title to her land, in consequence of which she instituted this suit to quiet title to the same.

The defendant Fanny Gliksman filed a counterclaim for a reformation of the deed dated August 1, 1942, and therein made the complainant's husband, Jacob Joffe, a party to this suit, alleging that he is the real party in interest.

The complainant, before the hearing, reserved the right to move to strike the counterclaim of Fanny Gliksman, for the reason that the allegations contained therein show no ground for equitable relief, and do not set forth a cause of action.

The court reserved decision on this motion. Having considered the application to strike, I now have concluded to deny it. I am satisfied the counterclaim presents a cause of action which calls for equitable relief.

The correction deed, Exhibit C-2, was recorded by the defendant Fanny Gliksman, through her attorney, some three years...

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