Roll v. Rea

• Citation: 50 N.J.L. 264,12 A. 905
• Parties: ROLL v. REA.
• Decision Date: 27 February 1888
• Court: United States State Supreme Court (New Jersey)

12 A. 905

50 N.J.L. 264

ROLL

v. REA.

Supreme Court of New Jersey.

February 27, 1888.

(Syllabus by the Court.)

Case certified from circuit court, Middlesex county; before Justice SCUDDER.

Action of ejectment by Mary J. Roll against Adam Rea. Verdict directed for defendant, and rule to show cause why it should not be set aside certified to supreme court.

Argued before the Chief Justice and Justices REED, MAGIE, and DIXON.

W. Strong and A. H. Strong, for plaintiff. A, V. Schenck, for defendant.

DIXON, J. This is an action of ejectment brought July 12, 1884, in the Middlesex circuit court to recover possession of lots 10 and 11 in block 39 on a map made by John Perrine, Jr., in June, 1835, of lands in South Amboy. The lands laid down upon the map comprise three tracts, which were formerly known as the "Gordon Ferry Tract," the "Swan Hill Tract," and the "Lewis Hansell Tract." The plaintiff proved that the title to these tracts had become vested in fee in Alexander J. Cotheal and James P. Thomas, under several deeds of dates running from September 1, 1834, to May 6, 1835, by virtue of which said Cotheal and Thomas were trustees of Henry and David Cotheal, George C. Thomas, George W. Pine, John E. Van Antwerp, and Samuel Gordon, Sr., to sell and convey for the cestuis que trust, in certain designated proportions. She further proved that before 1874 the trustee James P. Thomas was dead; and that by deed dated April 16, 1874, the other trustee, Alexander J. Cotheal, in consideration of $2,500, bargained, sold, remised, released, and quitclaimed unto herself and Sarah E. Dey, their heirs and assigns, all his right, title, and interest, in law and equity, in the before-mentioned tracts, the deed containing the following: "The aforesaid described premises, being the same premises surveyed by John Perrine, Jr., June, A. D. 1835, and the map of the same filed in the clerk's office of the county of Middlesex aforesaid, entitled 'A Map of Property in the Town of South Amboy, Middlesex County, New Jersey.' It is agreed by and between the parties to these presents that this indenture shall not conflict with the title to any part of the aforesaid premises previously sold and conveyed by the said Alexander J. Cotheal and James P. Thomas to any party or parties, and this deed is subject to any such consequences. And all the parks, streets, and avenues as laid out on the aforesaid map are hereby excepted from the deed, and are not quitclaimed or in any manner conveyed by these presents." The plaintiff also proved that in June, 1876, a decree was rendered by the court of chancery against Sarah E. Dey and her husband, at the suit of the Mutual Building & Loan Association of South Amboy, for a deficiency existing upon foreclosure of a mortgage; that a fi. fa. was issued June 27, 1876, to the sheriff of Middlesex county, to raise the amount of such decree by sale of the defendants' goods and lands; that, by virtue of the fi. fa., said sheriff levied upon and duly sold the interest of the defendant Sarah E. Dey in block 39 on said Perrine map, and duly conveyed the same to James H. Wallace, by deed dated April 11, 1877; and that by deed dated May 28, 1884, said Wallace conveyed the same to the plaintiff. The foregoing conveyances, having been all duly recorded, constituted the plaintiff's title. The defendant contended that by a deed dated June 17, 1835, the trustees, Cotheal and Thomas, had sold and conveyed block 39 on said map to John Lary, and that, although this deed never had been recorded, yet the plaintiff had notice of it before she took the conveyance of April 16, 1874, and hence was bound by it, and, while the defendant did not claim title under Lary, he insisted that Lary's title defeated the plaintiff's right of possession. The circuit court upheld this contention, and directed the jury to render a verdict for the defendant, and thereupon allowed the plaintiff a rule to show cause why the verdict should not be set aside, and certified the same to this court for its advisory opinion.

Conceding all the claims upon which the circuit court acted, there still arises the question whether the notice of the Lary deed which the plaintiff received before the conveyance by the trustee to herself and Sarah E. Dey would interfere with the claim which she makes as grantee of John H. Wallace. This question is answered by the rule, which is perhaps universally recognized where registry laws prevail, that a bona fide purchaser of land for valuable consideration, not having notice of a prior deed which is unrecorded, may convey to one who has notice thereof as good a title as he himself holds. Holmes v. Stout, 4 N. J. Eq. 492, same case on appeal, 10 N. J. Eq. 419; 2 Pom. Eq. Jur. § 754. It becomes necessary, therefore, to consider whether Wallace was a bona fide purchaser for value, without notice of the Lary title.

The deed to Wallace purports to have been made for a valuable consideration, and there is no evidence that he acted in bad faith; hence he is to be treated as a bona fide purchaser for value until the contrary be shown. Holmes v. Stout, 10 N. J. Law, 419. As to notice, also, the burden of proof rests upon the defendant who alleges it. Coleman v. Barklew, 27 N. J. Law, 357. It did not appear that Wallace had any notice of the Lary title, unless such notice is to be gathered from the fact that the defendant had open and visible possession of the premises at the time Wallace purchased, or from the chain of title under which he claimed. The defendant's possession was undoubtedly of a character to constitute notice. He was living upon the property in dispute. He had purchased the property from John E. Montgomery, who had delivered to him a deed for the same dated June 17, 1881, purporting to convey a fee-simple; which deed was duly recorded on June 20, 1881. Montgomery's title was also spread upon the record, and, according to the record, had begun in a tax sale of said block 39, made by William W. Seward, constable, in pursuance of a warrant from the township committee of South Amboy directing him to sell said block, as the property of certain non-residents of the state, for the taxes of 1854. At such sale Abraham Everitt had bought the block for the term of 28 years from June 28, 1856, and had received from the constable a deed conveying the same to him for said term. From Everitt the title had been transmitted through several transferees to the defendant; all the deeds being regularly recorded. Of the title so held by the defendant all persons must, beyond controversy, be deemed to have notice. But there does not appear in this title any trace of the title of John Lary; nor did the defendant ever pretend to hold under him. Notice by possession never extends beyond the rights of the occupant, and...