Schroeder v. Engroff

• Decision Date: 28 June 1960
• Docket Number: No. A--127,A--127
• Citation: 33 N.J. 204,162 A.2d 845
• Parties: Harold W. SCHROEDER, Plaintiff-Respondent, v. Robert W. ENGROFF and Adelaide L Engroff, his wife, Defendants-Appellants and Third Party Plaintiffs, v. Roland HOSICK and Lillian Hosick, his wife, Third Party Defendants.
• Court: New Jersey Supreme Court

Page 204

33 N.J. 204

162 A.2d 845

Harold W. SCHROEDER, Plaintiff-Respondent, v. Robert W. ENGROFF and Adelaide L Engroff, his wife, Defendants-Appellants and Third Party Plaintiffs, v. Roland HOSICK and Lillian Hosick, his wife, Third Party Defendants.

No. A--127.

Supreme Court of New Jersey.

Argued June 6 and 7, 1960.

Decided June 28, 1960.

Harold W. Schroeder, plaintiff-respondent, pro se.

Ernest F. Keer, Jr., Montclair, for defendants-appellants, Robert W. Engroff and Adelaide L. Engroff (Boyd, Dodd, Keer & Booth, Montclair, attorneys).

Harry Schaffer, Newark, for New Jersey Title Ins. Ass'n, amicus curiae.

PER CURIAM.

At the trial of this case there was presented a substantial issue related to the admissibility of certain parol evidence. This evidence was designed to establish the location of an iron stake marking the terminal point of the second course of the land conveyed by the deed out of which the controversy arose. The trial court received the proof subject to a later determination of its competency. At the conclusion of the matter he decided that it was not admissible, but because the precise problem had not been passed upon in the appellate Courts, he wisely undertook to dispose of the merits of the cause with the controversial evidence out of the record, and then as though it represented permissible proof. On both hypotheses he found that the plaintiff was not entitled to prevail. 52 N.J.Super. 88, 144 A.2d 808 (Law Div.1958).

The Appellate Division held that the parol evidence was a proper factor for consideration on the issue involved, that it was entirely credible, and that it resulted in the establishment of a different description of the tract covered by the critical deed. The effect of this determination was to reduce considerably the size of the parcel transferred by that deed. 57 N.J.Super. 452, 155 A.2d 15 (App.Div.1959).

We agree with the Appellate Division that the parol evidence relating to the location of the stake was admissible. In addition to the authorities appearing in its opinion, the following may be consulted: Resurrection Gold Mining Co. v. Fortune Gold Min. Co., 129 F. 668 671 (8 Cir. 1904); Wagers v. Wagers, 238 S.W.2d 125, 126 (Ky.App.Ct.1951); Ball Creek Coal Co. v. Napier, 305 Ky. 308, 202 S.W.2d 728 (Ct.App.1947); Dittrich v. Ubl, 216 Minn. 396, 13 N.W.2d 384, 388 (Sup.Ct.1944); City of Warsaw v. Swearngin, Mo., 295 S.W.2d 174, 181 (Sup.Ct.1956); Lee v. Barefoot, 196 N.C. 107, 144 S.E. 547 (Sup.Ct.1928); Will v. Piper, 184 Pa.Super. 313 314 A.2d 41, 44 (Super.Ct.1947); New York State Natural Gas Corporation v. Roeder, 384 Pa. 198, 120 A.2d 170, 172 (Sup.Ct.1956); State v. Gulf Oil Corp., 264 S.W.2d 743, 747 (Tex.Ct.Civ.App.1954); Muldoon v. Sternenberg, 139 Tex. 22, 161 S.W.2d 783, 786 (Sup.Ct.1942); 6 Thompson on Real Property §§ 3285, 3332, pp. 464, 530 (1940); Annotation 68 A.L.R. 4, 31--32; 32 C.J.S. Evidence § 1007, p. 1021; 11 C.J.S. Boundaries § 108, p. 703.

Our concurrence with the Appellate Division on the evidence problem, however, does not lead us to the same conclusion on the ultimate issue. Use of that proof as to the...