Schroeder v. Engroff

• Decision Date: 22 October 1959
• Docket Number: No. A--483,A--483
• Citation: 155 A.2d 15,57 N.J.Super. 452
• Parties: Harold W. SCHROEDER, Plaintiff-Appellant, v. Robert W. ENGROFF and Adelaide L. Engroff, his wife, Defendants and Third- Party Plaintiffs-Respondents, and Roland Hosick and Lillian Hosick, his wife, Third-Party Defendants- Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 452

57 N.J.Super. 452

155 A.2d 15

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

No. A--483.

Superior Court of New Jersey, Appellate Division.

Argued Oct. 5, 1959.

Decided Oct. 22, 1959.

Harold W. Schroeder, pro se.

Ernest F. Keer, Jr., Montclair, for respondents Engroff (Boyd, Dodd, Keer & Booth, Montclair, attorneys).

Before Judges GOLDMANN, FREUND and HANEMAN.

The opinion of the court was delivered by

HANEMAN, J.A.D.

Plaintiff filed a suit for possession of certain lands situate in Rockaway Township, Morris County. Defendants Engroff, in addition to denying plaintiff's right to possession, filed a counterclaim seeking to quiet title to the lands involved. The Engroffs joined the Hosicks, their grantors of the lands to which title is disputed, as defendants in a third-party action. They sought to recover from the Hosicks upon a breach of warranty under their deed in the event that plaintiff succeeded in his primary suit.

The matter proceeded to trial without a jury. At the trial objection was made by defendants to the introduction of certain extrinsic evidence concerning the original location of an iron pipe referred to in the second course of the deed by which title to the lands became vested in one of Engroff's predecessors in title. The trial court permitted the taking of the testimony so proffered but reserved the right to rule thereon at the conclusion of the trial. In its conclusions the trial court determined that the testimony to which objection had been so made was inadmissible and that the case was therefore barren of proof of the existence of a monument. However, the trial court also concluded that since there was no reported case in this jurisdiction in which the precise evidential question had received judicial treatment, he would treat of the matter as if the testimony alluded to had been admissible. He thereupon found that the plaintiff had failed to carry the requisite burden of establishing the location of the iron pipe. Judgment was entered for both the Engroffs and the Hosicks. From this judgment plaintiff appeals upon the grounds that the trial judge erred (1) in excluding the above testimony and (2) in concluding that, in any event, plaintiff had not borne the requisite burden of proof.

On July 13, 1933 William R. Jelliffe and wife, then being the owners of a tract of some 76 acres of land in Rockaway Township, conveyed the following portion thereof to Ernest Merrill:

'Beginning at a pipe in the road from Meriden to Lyonsville, where the property conveyed adjoins that of George Lyon; thence in a northwesterly direction along the line of an old stone wall three hundred and fifty feet (350 ); thence in a southwesterly direction three hundred and twenty-five feet (325 ) to an iron stake; thence in a southeasterly direction parallel to the old line three hundred and fifty feet (350 ); thence along the road from Meriden to Lyonsville three hundred and twenty-five feet (325 ), more or less, to the original point or place of beginning.'

This conveyance will hereafter be referred to as the Merrill deed. Merrill thereafter conveyed the lands by an identical description to Roland and Lillian Hosick. The Hosicks conveyed what purported to be the identical premises to defendants Engroff by deed dated April 3, 1956. The description contained in the latter deed is as follows:

'Beginning at the beginning corner mentioned in the deed from Ernest Merrill and wife to Roland Hosick and wife, dated December 1, 1953 and recorded in the Morris County Clerk's Office in Book F--55 of Deeds on pages 344 &c., for said County, and from said beginning running thence (1) North 20 degrees 44 minutes west to the second corner of the fourth parcel containing 2.20 acres more or less mentioned in the deed from Mountain Farms Company to William R. Jelliffe, dated April 3, 1922 and recorded in the Morris County Clerk's Office in Book R--27 of Deeds on pages 191 &c., for said County, continuing on the same course north 20 degrees 44 minutes west a total distance of 216.12 feet to the beginning corner of the above mentioned 2.20 acre more or less tract, said point being also the beginning corner of the Third Parcel containing 10.58 acres more or less mentioned in the deed from Mountain Farms Company to William R. Jelliffe dated April 3, 1922 and recorded in the Morris County Clerk's Office in Book R--27 of Deeds on pages 191 &c., for said County, said point being also a corner common to lands now or formerly Peter W. Shaw and Watson Lawrence; thence (2) along the third course of the said 10.58 acre more or less tract reversed and along the line of the above mentioned now or formerly Peter W. Shaw north 37 degrees 26 minutes west 133.88 feet, said point being the second corner mentioned in the deed from Merrill to Hosick referred to above; thence (3) south 68 degrees 05 minutes west 325 feet to the third corner of the above mentioned deed from Merrill to Hosick; thence (4) south 28 degrees 12 minutes east 350 feet to the fourth corner in said deed, being a point in the Meriden-Lyonsville road; thence (5) still along said road north 78 degrees 16 minutes east 167.13 feet; thence (6) still along said road north 63 degrees 31 minutes east 66.93 feet; thence (7) still along said road north 50 degrees 48 minutes east 90.84 feet to the point or place of beginning. Being the same land and premises mentioned in the deed from Merrill to Hosick referred to above. Being a part of the Third Parcel containing 10.58 acres more or less and a part of the Fourth Parcel containing 2.20 acres more or less said two parcels being described in the deed from Mountain Farms Company to William R. Jelliffe dated April 3, 1922 and recorded in the Morris County Clerk's Office in Book R--27 of Deeds on pages 191 &c.'

On June 20, 1955 Margaret Moody and Hamden C. Moody and Minnie Maier and Joseph Maier, having theretofore acquired titled to the balance of the lands owned by Jelliffe, conveyed the same to plaintiff.

I.

We are first confronted with the question of the admissibility of the testimony which concerned the location of the iron pipe.

The question of the construction of a deed where the terms are unambiguous is one for the court, but where there is a latent ambiguity, evidence Aliunde is admissible and the question of location of a grant to its proper subject matter is a question to be determined by a jury by the aid of extrinsic evidence. Hofer v. Carino, 4 N.J. 244, 72 A.2d 335 (1950); Opdyke v. Stephens, 28 N.J.L. 83 (Sup.Ct.1859). See also, 9 Wigmore on Evidence (3d ed. 1940), § 2472, p. 233.

Boundaries may be proved by every kind of evidence admissible to establish any other fact. Yard v. Ocean Beach Ass'n, 49 N.J.Eq. 306, 24 A. 729 (E. & A.1892); Opdyke v. Stephens, supra.

Locations of mouments are evidential factual questions which may be proved in a boundary dispute as any other factual issue. Holmes v. Barrett, 269 Mass. 497, 169 N.E. 509 (Sup.Jud.Ct.1930).

In the matter Sub judice, although the description in the deed is clear and unambiguous, there does exist a latent ambiguity, since the distance of the second course to the alleged location of the monument (the iron pipe as located by plaintiff's witnesses) referred to in the conveyance, and the third course from the said iron pipe to the Meriden-Lyonsville Road are not of the length prescribed in the conveyance. The problem is not one of the construction of the deed but rather of location of the lands described. Evidence concerning the location of the iron pipe is therefore admissible.

II.

We proceed to a consideration of the case on its merits.

The pipe was admittedly not in existence at the time of the Hosick-Engroff conveyance.

Merrill testified: His father and Dr. Jelliffe had been intimate friends for some years prior to 1933. In that year Dr. Jelliffe, having been apprised of the fact that Merrill had a desire to acquire title to a small parcel of land, agreed to convey to him the southeast corner of the larger tract then owned by Dr. Jelliffe. The land was at that time vacant and unimproved. Dr. Jelliffe and Merrill went to the locality and walked over a portion of the land intended to be conveyed to Merrill. Merrill stated to Dr. Jelliffe that he was concerned about the water supply and was desirous of obtaining title to a spring located in the general vicinity of the land to be conveyed. The two proceeded to the spring. They then determined upon the location of one corner of the property some 10 feet beyond the spring. Several weeks thereafter they placed an iron pipe at that point. At no time did they obtain a survey, actually measure the distances of the various courses, or even pace off the distances of said courses. They determined the boundaries, as Merrill stated, 'by eye' and not by any actual measurements. The underbrush at that time was too thick to permit of a pacing of the courses. The deed was thereupon prepared by the parties without benefit of counsel or of a surveyor.

Plaintiff, who has resided in the locality since prior to 1933, and who had rented the balance of the Jelliffe tract in 1935, substantiated Merrill in his location of the iron pipe and testified that he had seen it in that year, shortly after it had been installed. He recalled the presence of the pipe in that position as recently as 1940--1945 but had no recollection of when he had last seen it.

It is to be noted that the Hosicks were not called to testify as to the existence or non-existence of the iron pipe at the time of the conveyance to them and prior to their bulldozing the tract. This failure quite naturally leads to the mental inquiry as to the cause of their failure to testify and raised a query as to whether their testimony would not have been that the iron pipe...