White v. Smith

• Citation: 60 A. 399
• Parties: WHITE et al. v. SMITH et al.
• Decision Date: 23 March 1905
• Court: New Jersey Court of Chancery

60 A. 399

WHITE et al.

v. SMITH et al.

Court of Chancery of New Jersey.

March 23, 1905.

Bill for partition by Josiah White and others against Ella Etta Smith and others. On bill, plea, and. stipulated facts. Plea overruled.

See 58 Atl. 817.

The bill of complaint in this cause is filed for the partition or sale of a tract of land situate in the borough of Pleasantville, in the county of Atlantic, known as the "Capt. Samuel W. Weaver Farm," containing 95 acres, more or less. The complainants allege that they are jointly owners of an equal undivided one-third part of the premises. They make defendants Ella Etta Smith, who, they allege, is entitled to an equal undivided third part thereof, subject to the curtesy of her husband, Rufus Smith, and George H. Weaver and Josephine Maude Lake (formerly Weaver), who, the complainants aver, are each seised of, and entitled to, an undivided one-sixth part of said premises; the share of said Josephine being subject to the right of curtesy of Frank Lake, her husband. The bill has the usual prayers for answer and for relief by partition or sale of the premises, etc., but omits to present any prayer for process against the defendants. The defendants Ella Etta Smith and Rufus Smith, by their solicitor, have entered a general appearance in the cause. They have also filed their joint and several plea to the bill of complaint. By this plea the defendants Ella Etta Smith and Rufus Smith, her husband, plead in bar to the whole bill that the complainants are not either jointly or severally owners of an equal undivided one-third part of the premises mentioned and described in the bill of complaint, or of any other share of said premises; that the complainants are not, jointly or severally, coparceners, joint tenants, or tenants in common in the lands and premises described in the bill of complaint; and that they are not seised of any estate whatsoever in the same, whereby they can. under the laws of this state, under the rules and practice of this court, ask for a partition of said lands, or any alternative relief such as is prayed for in their bill of complaint. A replication was filed by the complainants, joining issue on the above plea. After issue had been joined on the plea, the parties, by their solicitors, entered into the following stipulation, which was filed in the cause:

"It is hereby stipulated and agreed that the facts put at issue by the pleading in this case are as follows:

"(1) That the lands sought to be partitioned under the bill of complaint in this cause were owned in fee simple by Samuel W. Weaver, and at his death, which occurred on January 8, 1872, under the provisions of his will, the same descended to his widow, Josephine T. Weaver, one-third; Theodore S. Weaver, two-ninths; Alphonso W. Weaver, two-ninths; and Ella Etta Weaver, two-ninths.

"(2) That Theodore S. Weaver died Intestate in November, 1892, leaving, him surviving, as his only heirs at law, two children, Josephine Maude Lake (née Weaver), wife of Frank Lake, and George H. Weaver.

"(3) That Alphonso W. Weaver died in April, 1888, unmarried and without issue.

"(4) That Ella Etta Weaver married Rufus Smith on July 1, 1884.

"(5) That on September 20, 1897, Josephine T. Weaver executed a paper writing wherein and whereby she leased the entire of the premises in question to the complainants at a stated rental, giving them the option to purchase said premises at the sum of eight thousand dollars at any time during the continuance of such lease; that this option was duly exercised by the complainants, but the said Josephine T. Weaver was unable to comply, and did not comply, with the conditions of said paper writing or agreement so made by her with the complainants.

"(6) That thereupon the complainants filed their bill of complaint in this court, praying that the said Josephine T. Weaver be compelled by a decree of this honorable court to specifically perform said contract, and such proceedings were had thereafter and therein that on the ——— day of ———, in the year nineteen hundred and four, a decree was made in this honorable court requiring and decreeing the said Josephine T. Weaver to convey unto the complainants her undivided one-third interest in said lands upon the complainants paying to her one-third of eight thousand dollars, the price at which she had agreed to convey the entire of said premises to complainants;

"(7) That said Josephine T. Weaver duly appealed from said decree of this court to the New Jersey Court of Errors and Appeals and that said appeal was noticed for argument at the June term, 1904, of that court, but was not reached in time to be argued or disposed of at that time.

"(8) That said appeal has not as yet been determined, is still pending, and has been duly noticed for argument at the November term, 1904, of said Court of Errors and Appeals.

"(9) That the only title which the complainants claim to have in the lands in question is such title as is vested in them by virtue of the said decree in chancery made on the —— day of ——, aforesaid, and that they do not claim title by virtue of any other instrument or thing whatsoever.

"(10) That, at the time of the filing of the bill of complaint herein, Ella Etta Smith, one of the defendants, was seised of, and entitled to, an equal undivided one-third interest in said lands and premises; the remaining one-third interest being held by Josephine Maude Lake and George H. Weaver, as heirs at law of Theodore S. Weaver, now deceased.

"(11) That, upon the facts above stated, this court may hear and determine the question as to whether the complainants have any standing in this court unless under their said bill of complaint, and whether they have a right at this time to pray for and have a decree for the partition of said lands and premises, and such other relief as prayed for by them therein.

"Thompson & Cole,

"Solicitors of Complainants. "Louis G....