Myers v. Folkman

• Decision Date: 10 November 1916
• Parties: DANIEL W. MYERS v. ADOLPH FOLKMAN AND OTHERS
• Court: New Jersey Supreme Court

99 A. 97

89 N.J.L. 390

DANIEL W. MYERS v. ADOLPH FOLKMAN AND OTHERS

Supreme Court of New Jersey

November 10, 1916

Argued June 8, 1916.

On defendant's rule for new trial.

For the plaintiff, Bourgeois & Coulomb.

For the defendants, John W. Wescott and Ulysses G Styron.

Before Justices SWAYZE, MINTURN and KALISCH.

OPINION

SWAYZE, J.

This is an action of ejectment. The record title is in the defendants. The plaintiff claims only by adverse possession. There are two insuperable difficulties in the way of his recovery -- first, he has failed to show possession for the requisite time; second, his possession did not on his own uncontradicted proof become adverse until 1906.

(1) He does not pretend that he was personally in possession for twenty years. He relies upon the possession of his predecessors in title. To make out his case, he is obliged to claim the benefit of the possession of John D Doyle, even against Doyle's own title. To accomplish this, the plaintiff sets up a lease to John D. Doyle made by Charles R. Myers, a predecessor in title of the plaintiff, at a time when David Doyle, John D.'s father, was alive and had title to the land. The plaintiff's argument is that John D. Doyle as tenant was estopped to deny the title of Charles R. Myers, and therefore John D.'s possession was the possession of Myers, and can be tacked to the possession of other predecessors in title to the plaintiff and thus enure to his benefit. The extent of this estoppel depends on the terms of the lease. It is not produced, but its terms are made clear by the testimony of Charles R. Myers. He says it was for the same property as was described in a subsequent lease of 1898 to Doyle's sister, Mrs. Henry, which was produced; that the lease, which had not yet expired, was "virtually turned over" to Mrs. Henry; that "practically we rented the same property that John D Doyle had rented;" that he "leased the same property to John D. Doyle that he bought from Leedom;" that the "leases evidently was taken from the deed for the property itself, not the buildings, but it just went by the deed." Myers did not know at the time of the leases, he says, that the buildings covered more land than the deed to him from Leedom called for; the first he knew the deed conveyed more than the fifty feet it purported to convey was in 1911 or 1912. The lease to Henry described the premises as "all that tract of land now occupied by party of the second part, being fifty feet fronting on the boardwalk, three, hundred feet deep and including same (sic) the use of a seventeen-foot alley, rear of Missouri avenue." The dimensions, fifty by three hundred, do not include the land in dispute. We think the estoppel of the tenant to deny the landlord's title must be limited to the tract particularly described. No doubt both parties meant that the description should define as well as describe the demised premises.

(2) The second difficulty in the plaintiff's case is his failure to show adverse possession prior to 1906. He has contented himself with showing peaceful possession. He seems to think that a failure of the rightful owner to make claim is the same as a claim of adverse right made by him and his predecessors in title. It is, however, well settled that mere possession without claim of right or intent to disseize the real owner is not enough to constitute adverse possession. As Chief Justice Beasley says in Leport v. Todd, 32 N.J.L. 124, 131: "It is the existence of an intention to claim the fee, and the doing of some act indicative of such intention, which convert the occupation of land into an adverse possession; and this is the doctrine on which the decision of every case proceeds." So well settled is the doctrine that Justice Depue speaking for the Court of Errors and Appeals in Foulke v. Bond, 41 N.J.L. 527, repeatedly takes it for granted. Thus he says: "We have seen that entry under color of...