Miller v. Ternane
| Decision Date | 07 November 1887 |
| Citation | 11 A. 136,50 N.J.L. 32 |
| Parties | MILLER v. TERNANE. |
| Court | New Jersey Supreme Court |
(Syllabus by the Court.)
In ejectment. On case certified from Mercer county circuit court by Chief Justice BEASLEY.
Geo. D. Scudder, for plaintiff. C. H. Beasley, for defendant.
DIXON, J. John Miller and Henry Heintz, being the owners of adjoining houses and lots in Trenton, entered into a written agreement, dated December 30, 1852, which provided that, "so long as said Heintz owns said house and lot conveyed to him, he shall and may occupy and enjoy that part of the lot in the rear of said Miller's house as it now stands fenced off, until such times as he shall sell and dispose of the same to any other person." Henry Heintz entered into possession under said contract, and died in possession before 1863. At his death he devised his said house and lot to his wife, Bridget, for life, and she thereupon took possession of the same, and also of said part of the Miller lot, which she retained until her death, in 1885. During her life-time she leased the premises to the defendant, who is still in possession. The plaintiff is the devisee of John Miller, who died a short time ago. Some time between 1863 and 1875 Bridget Heintz, while in possession of the property, declared that "the piece of land (meaning the rear portion of the Miller lot) was hers as long as she lived, but at her death it was Mr. Miller's." Between 1875 and 1880 she declared that that strip of land did not belong to her. In 1886 the plaintiff brought in the Mercer circuit an action of ejectment for the rear portion of the Miller lot, and the defendant insisted that Bridget Heintz had acquired a good title against the plaintiff by adverse possession. The cause was certified to this court for its advisory opinion on the questions (1) whether the original entry of Bridget Heintz upon the strip of land in controversy was hostile, or by permission of the owner, John Miller; (2) whether or not the possession of said strip of land by Bridget Heintz, and the tenants holding under her was adverse, and so continued for the statutory period of time.
In order that the possession of land may be adverse, it must be in denial of the title of the true owner, or with an intention to make title against him. Foulke v. Bond, 41 N. J. Law, 527. If, therefore, the possession be in recognition of and submission to the title of the true owner, in whole or in part, it will to the same extent not be adverse. Whether the...
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