PHOENIX PINELANDS CORPORATION, ETC. VS. HARRY DAVIDOFF (C-000246-11, OCEAN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: April 29, 2021
• Docket: A-2823-16
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2823-16

PHOENIX PINELANDS CORPORATION, a New Jersey Corporation, APPROVED FOR PUBLICATION

Plaintiff-Respondent, April 29, 2021

APPELLATE DIVISION v.

HARRY DAVIDOFF, also known as Frederic Vail, GIDEON CRANMER, JAMES NALE, Administrator of the Estate of Gideon Cranmer, JAMES BODINE and CORNELIA C. BODINE, his wife, JOB CORLIS and ELIZA CORLIS, his wife, JAMES BODINE, CORNELIA BODINE, JOHN HOLMES and EMMOR R. WILLS, Administrator of the Estate of JAMES BODINE, CORNELIA COLLINS HOLMES, ANNIE HOLMES BODINE, JOSEPH PREDMORE, ADELE PREDMORE, MARGUERITE NEWTON, PREDMORE COX, CHARLES ROY COX, ELLIE BODINE COX, ELLA M. CLAYTON, EDGAR LESLIE BODINE, ALMA BODINE BAKER, ALMA BODINE BAKER ESTATE IN TRUST f/b/o Four Children of CHARLOTTE FIELDER WADE, ARTHUR BAKER, CHARLOTTE FIELDER WADE, BENJAMIN WADE, ELLIE BODINE, JOSEPH RODGERS NEWTON, ISABEL KINSELL, JESSUP GARRON, LEON V. GARRON, EDWARD C. JESSUP, MARGUERITE NEWTON, SAMUEL NEWTON, HELEN NEWTON, NANCY JOURDAN, DONALD MUSSER, NICHOLAS NEWTON, ASHTON BODINE, HATTIE E. SURRAN, FLORENCE NEWTON McCALL, RACHEL NEWTON, THEODORE L. CHRISTOPHER, CORNELIA BODINE, HAROLD BODINE, JOHN R. BRINKERHOFF, ISAIAH ADAMS and MARY M. ADAMS, his wife, WILLIAM A. SHEPARD, NATHAN HALL, WILLIAM A. SHEPARD and CAROLINE M. SHEPARD, his wife, HENRY SHAW, CENTRAL TRUST and TITLE COMPANY by George H. Deller and H.M. Shaw, President, MEYER BEYER and MATHILDA BEYER, BERMAN HERRMAN and LEON KOLMER, SOFIE HERRMAN, LOUISA KOLMER, GEORGE ORLOV, VERA ORLOV, LYDIA ORLOV, VICTOR ORLOV, MARTHA ORLOV, JENNIE ORLOV, DAISY ORLOV, RAYMOND ORLOV a/k/a RAYMOND LOVE, ELIZABETH ORLOV, MARIE ORLOV, SAM GAINES, ISAIAH ADAMS,

A-2823-16 2 MEYER BEYER, ISADORE MILKENSTEIN and ROSA MILKENSTEIN, WOLF HERSKOWITZ, SAMUEL SHELL, LOUISA SCHELL, SAMUEL N. SCHELL, SAMUEL R. SCHELL, ANNA SCHELL, WILLIAM M. SCHELL, MARJORIE SCHELL, WILLIAM R. SCHELL, DENISE SCHELL, MARIANNE SCHELL KID, EILEEN SCHELL BENKOVIC, CHRISTOPHER SCHELL, JACQUELINE SCHELL GALLO, WILLIAM SCHELL, MICHAEL SCHELL, JOSHUA W. CORLIS, LYDIA A. CRANMER, HARVEY CORLIS, ELLIS CRANMER, ANNA K. ACKER and JAMES R. ACKER, h/w, CHARLES RUSSELL, HELEN HORN LINDGREN, EDITH WARREN KUEPPERS and ROBERT KUEPPERS, her husband, WARREN STEVENS, BARBARA R. STEVENS, h/w, J&M LAND COMPANY, CHARLES DeSORTE, VIOLET DeSORTE, his wife, BARNEGAT RIFLE AND PISTOL CLUB, INC., CONTINENTAL SEARCHERS, INC., ESTATE OF WOLF HERSKOWITZ, WILLIAM GIBBS, trustee, SAMUEL HALPERN and PAULINA HALPERN, his wife, ANNIE SAPERSTEIN and HARRIS SAPERSTEIN, her husband, HYMAN ROSENSOHN,

A-2823-16 3 BERTHA BOEHM, BURLINGTON CONCRETE CO., MOUNT LAUREL CONCRETE COMPANY, their heirs, devisees and personal representatives, and his, their or any of their successors in right, title and interest, unknown claimants, and their heirs, devisees and personal representatives, and his, their, or any other successors in right, title and interest, and FIRST AMERICAN TITLE INSURANCE COMPANY,

Defendants,

and

STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Defendant-Appellant.

Argued January 30, 2019 - Decided April 29, 2021

Before Judges Accurso, Vernoia and Moynihan.

On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. C-000246-11.

Jennifer L. Moriarty argued the cause for appellant (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of

A-2823-16 4 counsel; Joan M. Scatton and Jennifer L. Moriarty, Deputy Attorneys General, on the briefs).

Michael R. O'Donnell argued the cause for respondent (Riker Danzig Scherer Hyland & Perretti LLP, attorneys; Michael R. O'Donnell, of counsel and on the brief; Jorge A. Sanchez, on the brief).

The opinion of the court was delivered by

ACCURSO, J.A.D.

The State of New Jersey, Department of Environmental Protection,

appeals from a final judgment in this quia timet and ejectment action divesting

it of its title to seven parcels of land in the Preservation Area of the Pinelands

National Reserve, consisting of over 250 acres, and granting title to those

properties to an adjoining landowner, plaintiff Phoenix Pinelands Corporation,

operator of a grandfathered sand and gravel mine. Desirous of expanding its

mining operation and believing the State would be "a reluctant seller," Phoenix

made no attempt to purchase the State's lands. Instead, Phoenix mounted a

surreptitious two-decade-long quest to undermine and cloud the State's title to

the properties and establish its own competing chains of title. Phoenix spent

over $1 million hiring searchers, surveyors, genealogists and lawyers to

exploit potential defects in the State's titles that, regrettably, are not

uncommon in land titles in the Pinelands. It tracked down putative heirs and

A-2823-16 5 purchased their fractional interests, sometimes for sums approximating actual

value, by way of omnibus quitclaim deeds it drafted for the purpose.

Then, in an effort to establish a presumption of peaceable possession of

the State's lands, the statutory prerequisite to a quiet title action, N.J.S.A.

2A:62-2, Phoenix, without notice to the State, presented the tax assessor for

Little Egg Harbor Township with its newly drawn deeds and chains of title for

the State's properties and asked to be allowed to pay taxes on them. Little Egg

Harbor, also without notice to the State, and while continuing to accept the

State's PILOT (payment in lieu of taxes) fees for the properties, redrew its tax

map at Phoenix's behest, erasing the State's parcels and replacing them with a

single lot and block designation listing Phoenix as the assessed owner.

Phoenix then instituted this action in the Chancery Division seeking equitable

relief in the form of the voiding of the State's recorded deeds.

Critically, Phoenix held no interest whatsoever in any of the State's

seven properties when it began its quest to undermine the State's record title

and divest it of ownership of all seven parcels. Those actions, which Phoenix

readily owns, are anathema to the principles undergirding New Jersey's land

title laws and brand it a "title raider," one "who seeks technical flaws in title in

order to upset existing equities and clearly vested rights," Palamarg Realty Co.

A-2823-16 6 v. Rehac, 159 N.J. Super. 287, 297 (App. Div. 1978), vacated on other

grounds, 80 N.J. 446, 453 (1979), and in whose "activities" our courts "find no

social value or contribution," O & Y Old Bridge Dev. Corp. v. Cont'l

Searchers, Inc., 120 N.J. 454, 458 (1990) (citing Bron v. Weintraub, 42 N.J.

87, 95 (1964)).

Phoenix's nefarious actions permit it no relief in a court of equity. And

allowing this judgment to stand risks destabilizing marketable titles in the

Pinelands and does not "best support and maintain the integrity of the

recording system," Palamarg, 80 N.J. at 453. Phoenix also did not succeed in

establishing its title to six of the seven parcels "free from all reasonable

doubt," Shotwell v. Shotwell, 24 N.J. Eq. 378, 387 (Ch. 1874). We therefore

reverse the judgment and remand for reinstatement of title to all seven

properties in the State, imposing a constructive trust on the "title" Phoenix

acquired in one of the State's parcels to which the State is equitably entitled on

payment of the sum Phoenix expended in acquiring it, plus simple interest.

For ease of reference, we offer a guide to our opinion. We begin our

discussion with a brief description of the Pinelands and the federal and State

efforts to protect and preserve it, leading to the State's purchase of these seven

parcels. We next detail Phoenix's efforts to locate and exploit defects in the

A-2823-16 7 State's titles, Phoenix's purchase of competing interests, and its successful

effort to have the Little Egg Harbor tax map redrawn to erase the State's

parcels and consolidate the lots under one lot and block listing itself as the

assessed owner.

We then recap the history of the litigation, specifically addressing the

2013 order by which the first judge to handle the matter granted the State's

motion to dismiss Phoenix's claim for quiet title but denied the State's motion

to dismiss Phoenix's quia timet claim,1 and summarizing the second judge's

two opinions vesting title to all seven properties in Phoenix. We next outline

1 "[T]he ancient bill quia timet, to remove a cloud from a title, in which the complainant sets forth his own title and the defendant's title, and starts out affirmatively with the burden of proof upon him to demolish the defendant's title or claim" is distinguished from a statutory action to quiet title

in which the object of the bill is to compel the defendant to take the affirmative, to bring a suit at law or in equity, to set forth any demand of any kind which he sees fit to set forth, and to give the complainant the benefit of a decree relieving the land of which he holds peaceable possession from all claims of the defendant, or establishing those claims and rendering them definite so as to inform the complainant precisely what their character and extent in fact are.

[Fittichauer v. Metro. Fire Proofing Co., 70 N.J. Eq. 429, 436 (Ch. 1905).] A-2823-16 8 the parties' arguments on appeal. Finally, we address the law and apply it to

the facts, which are now largely undisputed.

The Pinelands and the State's Purchase of the Properties

Congress established the 1,000,000-acre Pinelands National Reserve in

the National Parks and Recreation Act of 1978, Pub. L. No. 95-625, 92 Stat.

3492 (codified at 16 U.S.C. § 471i), making the Pinelands the first natural

resource to be protected under the "national reserve" program. See Gardner v.

N.J. Pinelands Comm'n, 125 N.J. 193, 198-99 (1991). "A 'wilderness' of pine-

oak forests and wild and scenic rivers, the Pinelands harbors a 'wide variety of

rare, threatened and endangered plant and animal species.'" Id. at 199 (quoting

S. Energy and Env't Comm. Statement to S. 3091 (L. 1979, c. 111) (June 28,

1979) and John McPhee, The Pine Barrens 4-5 (1981)). It also "overlies the

vast, seventeen-trillion gallon Cohansey aquifer, 'one of the largest virtually

untapped sources of pure water in the world.'" Ibid. (quoting S. Energy and

Env't Comm. Statement to S. 3091).

Declaring the protection and preservation of the Pinelands to be in the

national interest, Congress in 1978 authorized federal funding to assist New

Jersey in the development of a comprehensive plan for its management and for

A-2823-16 9 the acquisition of lands within the Pinelands National Reserve having "critical

ecological values which are in immediate danger of being adversely affected or

destroyed." 16 U.S.C. §§ 471i(b)(1) to (b)(3), (h)(1)(A). New Jersey enacted

the Pinelands Protection Act, N.J.S.A. 13:18A-1 to -58, the following year,

creating the Pinelands Commission to implement the law and assume primary

responsibility for planning in the Pinelands, N.J.S.A. 13:18A-4.

In that Act, the Legislature singled out "a certain portion of the

pinelands" it determined to be "especially vulnerable to the environmental

degradation of surface and ground waters . . . occasioned by . . . improper

development or use," which degradation "would result in a severe adverse

impact upon the entire pinelands area." N.J.S.A. 13:18A-2. It established this

"Preservation Area" within the Pinelands National Reserve with the goal of

preserving "an extensive and contiguous area of land in its natural state,

thereby ensuring the continuation of a pinelands environment which contains

the unique and significant ecological and other resources representative of the

pinelands area." N.J.S.A. 13:18A-9(c)(1); see also Uncle v. N.J. Pinelands

Comm'n, 275 N.J. Super. 82, 84 (App. Div. 1994). In addition to determining

the Preservation Area should be subject to "more stringent restrictions on the

development and use of land," the Legislature also identified it as the area

A-2823-16 10 where the State should concentrate "public acquisition of land or interests

therein." N.J.S.A. 13:18A-2.

In its 1980 Comprehensive Management Plan, the Pinelands

Commission determined the State needed to acquire roughly 97,000 acres

throughout the Pinelands in order to meet the Act's goals, complementing the

240,000 acres of conservation land the State already owned. New Jersey

Pinelands Commission, New Jersey Pinelands: Comprehensive Management

Plan 217, 251 (Nov. 1980). The State's acquisition of land in the Pinelands is

managed cooperatively between the Commission and the Department of

Environmental Protection, with the Commission planning acquisition projects

for which the Department acts as the acquisition agency. Id. at 214; see also

N.J.S.A. 13:18A-4.

Acting on the Commission's recommendation, the Department in 1986

authorized State funds, including restricted bond funds, and federal monies for

acquisition of 8,400 acres of ecologically significant land in connection with

the "East Plains — Stafford Forge" project, including lands located in the

Preservation Area within Little Egg Harbor Township. The seven parcels at

issue here were all purchased by the State as part of that effort.

A-2823-16 11 After identifying the block and lot designations of the properties it was

interested in purchasing in the project area on municipal tax maps, the

Department used the tax rolls to identify the owners of the land and sent them

letters advising of the State's interest in acquiring their land for preservation in

the Stafford Forge project. Interested landowners were invited to public

meetings for information on the project and the steps necessary for the State to

purchase qualifying properties.

The Department contracted with third-party surveyors, title companies

and appraisers to review each parcel. The Department relied on the title

companies to perform the searches and assure the State it was acquiring good

title. It further engaged a surveyor to survey each parcel, and a surveyor's

description was included in each deed.

For each parcel identified, the State obtained two independent appraisals

of fair market value "as an entire taking." Department policy in the

Preservation Area was to have the appraisals reflect pre-Pinelands-regulation

land values, thereby disregarding any reduction in value occasioned by State

and federal regulation. See New Jersey Pinelands Commission, New Jersey

Pinelands: Comprehensive Management Plan: A Progress Report on the First

Three Years of Implementation IV-2 (Dec. 1983). The two appraisals were

A-2823-16 12 then evaluated by a review appraiser in the Department of Transportation's

Division of Right of Way and Access Management, who certified to the value

on the basis of the appraisals. The Department would offer to buy the parcel at

the certified fair market value.

Through depositions of several retired State employees who were

involved in this process on behalf of the Department and the Attorney

General's office, the parties established the Department was aware the

Pinelands is a "very complicated area" in which to search title. In addition to

the properties being mostly uninhabited, all of the properties at issue here were

originally located in Burlington County prior to an 1891 adjustment in county

boundary lines, which thereafter placed the properties in Ocean County. 2

Accordingly, the proper venue for recording deeds and other land title

documents for these seven parcels changed from Burlington County to Ocean

County in that year. Reference to the municipal tax map block and lot

designations offers searchers only limited assistance because many

municipalities in the Pinelands did not have tax maps until well into the

2 L. 1891, c. 138, p. 538-40 (an act to annex the township of Little Egg Harbor, in the county of Burlington, to the county of Ocean); see also John P. Snyder, The Story of New Jersey's Civil Boundaries 1608 – 1968, 19, 44 (1969). A-2823-16 13 twentieth century. Little Egg Harbor did not create its own municipal tax map

until 1959.

Further, and perhaps most significant, the original warrants from which

these properties derived contained thousands of acres which overlapped county

lines, and the older deeds often contain vague, inaccurate, or incomplete

property descriptions, often with multiple exceptions. The remoteness of the

area and its limited development — attributes which make it unique and

spurred the State and federal governments to take steps to preserve it intact for

future generations — also resulted in relatively few land transactions since the

A-2823-16 14 first severances from the Proprietors,3 and thus few opportunities to address

and resolve problems created by the descriptions in those initial surveys.4

As an example, our former colleague, Judge Wells, while sitting in

chancery, described the Isaiah Adams tract, the genesis of four of the seven

3 "New Jersey was a proprietary colony from the time of its capture from the Dutch as part of New Amsterdam by the forces of Charles II in the early fall of 1666 until the proprietors surrendered all governmental prerogatives to the crown in 1702." Graham v. Edison, 35 N.J. 537, 540 (1961). In 1664, before the Dutch surrendered, "Charles II formally granted the whole territory to his brother, James, Duke of York, with full powers of government and complete ownership of the land." Ibid. James shortly thereafter "conveyed that portion which is now New Jersey . . . to Lord John Berkeley and Sir George Carteret, their heirs and assigns forever, as sole proprietors." Id. at 540-41. "Lord Berkeley sold his interest in the granted lands in 1674, and New Jersey was divided into the provinces of East Jersey and West Jersey, the boundary between the two being established by the famous Quintipartite Deed of July 1, 1676." Jackman v. Bodine, 43 N.J. 453, 481 (1964) (Haneman, J. concurring). Justice Haneman went on to explain that even after the provinces were united in 1702, "sharp contrasts" remained. Id. at 482 (quoting McCormick, New Jersey from Colony to State, 1609-1789 56-57 (1964)). The population of West Jersey with its widely dispersed farms was smaller and less heterogeneous than that of the more compactly settled towns of East Jersey. Ibid. East Jersey was also "much more seriously divided by internal quarrels, arising out of the peculiar complexities of the dispute between the early townsmen, with their quit rent obligations, and the proprietors. There was no comparable source of contention in West Jersey." Ibid. (quoting McCormick, at 56-57). 4 For background on the proprietors' use of warrants and surveys for the purpose of "severing" title, see Normanoch Ass'n v. Baldasanno, 40 N.J. 113, 120-22 (1963); Gen. Proprietors of E. Div. of N.J. v. Force's Executors, 72 N.J. Eq. 56, 62-66 (Ch. 1896). A-2823-16 15 properties at issue here, as encompassing "8,525.80 acres in a 23-course

description which expressly excluded 26 surveyed exceptions returned to

others leaving a net acreage of 4,662.89" when it was surveyed by the

Proprietors of West Jersey in 1859. Hyland v. Kirkman, 204 N.J. Super. 345,

353 (Ch. Div. 1985). When Adams' successor-in-title conveyed the same land

over thirty years later in four transactions ranging in size from 1,750 to 2,797.7

acres, he ignored the exceptions. Ibid. As Judge Wells explained, whereas

workable protractions of the descriptions give some idea as to where the parcels are in relation to one another and to the outbound description of the return to Isaiah Adams[,] it is impossible to locate, with any accuracy, where the tracts are on the ground or the exact extent to which each is affected by one or more of the 26 exceptions. 5

[Ibid.]

During the course of discovery, the State produced its acquisition files

for each of the seven properties at issue and offered former employees

involved in the transactions for deposition. Those individuals, however, could

only offer general information about the process by which the State went about

5 Illustrating that point, Phoenix relied on an historic "mapping error" in locating the easterly line of the Adams tract, first discovered by its surveyor in the course of preparing Phoenix's lot consolidation subsuming the State's properties, in attacking the State's title to Properties IV and V. A-2823-16 16 acquiring lands for preservation in the Pinelands. They had very little memory

of the actual real estate transactions, all of which had taken place twenty-five

to thirty years before.

The State's purchases of the seven properties at issue, which it funded

through a seventy-five percent federal contribution, see 16 U.S.C. §§

471i(b)(3) and (h)(1), and twenty-five percent State funds through the New

Jersey Green Acres Bond Fund Act of 1983, L. 1983, c. 354, and holds in trust

for the benefit of the public, are summarized here. For each property, the State

produced its appraisal, title report, survey report and deed description. All the

purchases were by bargain and sale deed with covenants against grantor's acts

and title insurance was in place for all but Property I, for which Department

records reflect a title commitment but not a title policy. 6

6 Chicago Title insured the State's title to Properties II, III and IV. The company defended the State's title to those lands in this action for two years before electing to pay the policy limits on all three policies, thereby ending its obligation to further defend the State. First American Title Insuranc e Company insured the State's title to Properties V, VI and VII in 1994 when it acquired those parcels. The company subsequently insured Phoenix's title to all seven of the Properties. First American was a defendant in the proceedings in the trial court. The State settled its claims against First American for the full amount of its policies. The court bifurcated Phoenix's damage claims against First American, and Phoenix voluntarily dismissed those claims without prejudice after prevailing at trial. First American, which is

A-2823-16 17 Properties I, II and III all spring from an 1835 conveyance from the

Proprietors of West Jersey to Gideon Cranmer. 7 Properties IV, V, VI and VII

trace their origin to the 1859 Isaiah Adams tract.

Property I (Block 2, Lot 11)

The State purchased Property I, Block 2, Lot 11, a slightly over fifty-

five-and-a-half-acre parcel, part of a larger wooded tract, from Continental

Searchers, Inc. by deed recorded on September 26, 1989, for $75,451. 8 As

representing Phoenix pursuant to a reservation of rights, is not a party to this appeal. 7 Although Phoenix and its experts refer to Properties I, II and III as the "Bodine tract," and thus we sometimes do as well, the parcels are not contiguous. These properties were all part of a 152.63-acre tract of land conveyed to Gideon Cranmer by the Council of Proprietors of West New Jersey in 1835. Although recorded in the West Jersey Proprietors' "Return Book," the deed is not found in the records of any County Clerk's office. Instead, it is a part of the West Jersey Deeds collection maintained in the State Archives. Properties I, II and III are not contiguous because at the time the Council made its conveyance to Cranmer, it had already granted land to William Watson in 1808, which the conveyance to Cranmer overlapped. The conveyance to Cranmer was made subject to the lands previously conveyed to Watson. That seventy-three-acre overlap, sometimes referred to as the Watson exception, dissected the Cranmer tract, separating the easterly portion, which became Properties II and III (Block 4, Lot 8 and Block 4, Lot 8A), from the westerly portion, which eventually became Property I (Block 2, Lot 11) and reduced the net acreage to Cranmer to 79.47 acres. 8 This purchase price was for the entire eighty-acre tract, which also included Lot 10 conveyed by the same deed. Phoenix's surveyor contends Property I

A-2823-16 18 with Properties II and III, the State traces its title to Property I through an

unbroken line back to the West Jersey Proprietors' 1835 deed to Cranmer.

Following Cranmer's death, James Bodine acquired the Cranmer tract at

an Orphan's Court sale in 1860. Bodine and his wife, Cornelia, conveyed the

tract to Job Corlis, a local farmer, several months later. Following Corlis'

death, his heirs, who were still living in the area, conveyed the tract to

Frederick Vail in 1914.9 Vail died in 1941. He was listed as the assessed

owner when Pyramid Investment and Herbert L. Pickell acquired a series of

tax sale certificates for unpaid taxes on the property in 1965 and 1966. The

property was assessed to Pyramid and Pickell until entry of final judgment in a

tax sale foreclosure in 1978, vesting title in Elizabeth Anne Merring and

American National Bank and Trust, co-executors of Pickell's estate.

In 1979, Merring and American National conveyed the property to Betty

Simon, Trustee UDT of Richard Simon. Simon conveyed the property, along

(Block 2, Lot 11) encompasses only approximately fourteen acres. Another deed purporting to convey the same property states it consists of slightly over twenty-six acres, more or less. The tax bill to Phoenix puts it at slightly over twenty-four acres. We take the acreage figure in the text from the State's 1989 purchase offer and deed, without any determination as to which figure is accurate. 9 Vail was apparently a pseudonym used by Harry Davidoff, a New York resident who speculated in Pinelands properties. A-2823-16 19 with Lot 10, as well as additional lands, to Continental Searchers in 1988, the

entity from which the State obtained title in 1989.

Property II (Block 4, Lot 8)

The State purchased Property II, Block 4, Lot 8, a nearly forty-two-acre

tract, from Barnegat Rifle and Pistol Club, Inc. by deed recorded on April 9,

1990, for $68,000. As with Properties I and III, the State traces its title to

Property II in an unbroken line through Vail, Corlis and Bodine back to the

West Jersey Proprietors' 1835 conveyance to Cranmer.

Vail was listed as the assessed owner of Property II in 1963 when

Lincoln Oil Corporation acquired a tax sale certificate for unpaid taxes on the

property that it assigned to Warren W. Stevens in 1967, who subsequently

filed a complaint to foreclose the certificate. Stevens acquired title to the

property, along with four other lots in Little Egg Harbor, upon entry of final

judgment in the tax sale foreclosure in 1969. Property II was conveyed three

more times before the State acquired it from the Barnegat Rifle and Pistol Club

in 1990.

Property III (Block 4, Lot 8A)

The State purchased Property III, Block 4, Lot 8A, an almost three-acre

parcel, from Edith Warren Kueppers and Robert Kueppers, husband and wife,

A-2823-16 20 by deed recorded on May 8, 1990, for $11,525. As with Properties I and II,

the State traces its title to Property III in an unbroken line through Vail, Corlis

and Bodine back to the West Jersey Proprietors' 1835 deed to Cranmer.

Vail conveyed Property III to Charles Russell in 1915. Russell

conveyed the property to Helen Horn Lindgren in 1935, who conveyed it to

Edith Warren Kueppers in 1955. Kueppers and her husband Robert conveyed

the property to the State in 1990.

Property IV (Block 3, Lot 18)

The State purchased Property IV, Block 3, Lot 18, an approximately

seven-and-a-half-acre parcel, from the Estate of Herbert L. Pickell by deed

recorded on March 24, 1994, for $34,745.10 As with Properties V, VI and VII,

the State traces its title to Property IV to the 1859 grant from the West Jersey

Proprietors to Isaiah Adams.

Adams conveyed the entire 4,662.89-acre tract (8,525.80 acres less

exceptions) to William Shepard in 1860, who conveyed it to Nathan H. Hall.

Hall conveyed the entire tract back to Shepard in 1893. Shepard conveyed the

entire tract to Henry Shaw, president of Central Trust & Title Co., who

10 This sum also includes the price paid for an almost sixteen-acre tract known as Block 5, Lot 2 conveyed by the same deed. A-2823-16 21 conveyed it several days later to his company. In September 1893, Central

Trust & Title conveyed a 6/10ths interest in the entire 4,662.89 tract to Meyer

Beyer by deed recorded in Ocean County. The following year Central Trust &

Title, without mention of its prior conveyance to Beyer, conveyed "the easterly

2,797.74 acres of a tract of 4,662.89 returned to Isaiah Adams" to Beyer in a

deed recorded in Burlington County over a year later in 1895. The State, like

Phoenix, traces its title to Properties IV, V, VI and VII to the Meyer Beyer

deed, which notably contains no metes and bounds description.

Meyer and Mathilda Beyer conveyed a fifty-acre tract, described by

metes and bounds with reference to the Adams tract, to Sam and Paulina

Halpern by deed recorded in Ocean County on June 18, 1894. This

conveyance was one of several the Beyers made of lots, each one thirty chains

wide, running down the easterly line of the Beyer tract. The parties refer to

these several lots as "the corridor lots" from their appearance on a map.

Two months after acquiring the property from the Beyers, the Halperns

conveyed it to Annie and Harris Saperstein. The Sapersteins conveyed the

property to Hyman Rosensohn in 1896 by deed recorded in Ocean County.

Rosensohn subsequently conveyed twenty-six acres to Bertha Boehm in 1897

by deed with a metes and bounds description, recorded in Burlington County

A-2823-16 22 that same year. That deed was recorded in Ocean County in November 1970.

Boehm's interest in Property IV, which was described in a 1976 tax sale

complaint as "being 7.71 acres, more or less, known as Lot 18, Block 3, as

shown on Little Egg Harbor Tax Map, Sheet #2," was foreclosed by way of a

1978 tax sale judgment in favor of Elizabeth Anne Merring and American

National Bank and Trust, co-executors of the Estate of Herbert L. Pickell. The

State acquired the property from Pickell's estate in 1994.

The surveyor who appeared for the State at trial, Barry Jones, testified

the State's survey and description from the 1994 deed from Pickell contained

"an error in the beginning call coordinate values." Although the deed recites

that it begins "at the northerly corner of Lot 18, Block 3," the coordinates did

not match the call. Jones testified that plotting Lot 18 "in accordance with the

deed for Lot 19, as the two parcels abut each other, and then go abut the

county line," made clear the coordinates for the beginning call were incorrect.

Allowing the call to control the point of beginning made "the bearings and

distances match going around and up the county boundary line with . . . this

survey by the same surveyor [of] the adjoining lot" 19. Making the adjustment

and overlaying the Little Egg Harbor tax map on an aerial photograph of the

A-2823-16 23 area, using three roads to "get it in the right place on the face of the earth,"

made clear it coincided with the location of Block 3, Lot 18 on the tax map.

Property V (Block 3, Lot 19)

Property V, Block 3, Lot 19, consists of less than one-half acre. It is

located directly across Cervetto Road to the west of Block 4, Lot 13 (Property

VII). It is one of the three tracts the State purchased by deed from Continental

Searchers and the Estate of Wolf Herskowitz, recorded on July 8, 1994, for

$95,388. As with Properties IV, VI and VII, the State traces its title to

Property V through Meyer Beyer to the 1859 Adams grant.

The State's title expert, Joseph Grabas, asserted that Property V was

created as a result of an error in the Little Egg Harbor tax map, which placed

the easterly line of Block 3, Lot 19 west of its actual location, thereby creating

a small triangular lot on the west side of Cervetto Road. Grabas claimed

Property V is actually part of the 150-acre tract that includes Block 4, Lot 13

(Property VII). Phoenix's title expert at trial, Erwin Apell, agreed.11

11 Apell issued a report in this case agreeing that Property V "was intended to represent the western edge of the Milkenstein tract (Block 4, Lot 13) [Property VII]." He asserted that because "[t]he Milkenstein tract devolved as an entire tract[,] . . . the owner of the Milkenstein tract would own both Block 4, Lot 13 [Property VII] and Block 3, Lot 19 [Property V]." A-2823-16 24 Meyer and Mathilda Beyer conveyed a 150-acre tract (50 chains x 30

chains), described by metes and bounds coinciding with the boundaries of

Block 4, Lot 13 (Property V) and Block 3, Lot 19 (Property VII) to Isadore

Milkenstein by way of deed recorded in Burlington County in 1894 and in

Ocean County in 1971. Milkenstein conveyed the same tract to Wolf

Herskowitz two months later by deed recorded in Burlington County in 1900

and in Ocean County in 1971 on the same date as the Beyer deed.

Little Egg Harbor records show Meyer Beyer as the assessed owner of

Property V and Property VII until 1969, likely the result of the Milkenstein

and Herskowitz deeds being originally recorded in Burlington instead of Ocean

County. In 1969, Robert Kaufman, trustee of the K&D Land Trust, obtained

two deeds from the heirs of Meyer Beyer in an apparent effort to acquire

whatever interest remained vested in Beyer as a result of the 1893 deed

transferring 6/10ths of the entire 4,662.89 tract to him, and the assessed owner

changed to Robert Kaufman/K&D Land Trust.

In July 1983, Continental Searchers obtained a final Chancery Division

judgment by consent against the Estate of Wolf Herskowitz vesting title in

Continental Searchers of an undivided fifty percent interest in Property V

(Block 3, Lot 19) and Property VII (Block 4, Lot 13), which was recorded in

A-2823-16 25 Ocean County. In 1993, Continental Searchers and the Estate of Wolf

Herskowitz obtained a quitclaim deed from Robert Kaufman, individually and

as trustee of K&D Land Trust, conveying their interests in the same lands

described in the 1894 Milkenstein to Herskowitz deed, "known and

designated" on the Little Egg Harbor tax map as "Lot 19 in Block 3 [Property

V] and Lots 11 [Property VI] and 13 [Property VII] in Block 4." In 1994, the

State took title to Property V by way of deed from Continental Searchers and

the Estate of Herskowitz.

Property VI (Block 4, Lot 11)

Property VI, Block 4, Lot 11, is part of the land the State purchased from

Continental Searchers and the Estate of Wolf Herskowitz by deed recorded

July 8, 1994, consisting of a little over sixty-six acres. As with Properties IV,

V and VII, the State traces its title to Property VI through Meyer Beyer to the

1859 Isaiah Adams grant. Property VI, however, does not appear to have been

a part of the lands conveyed from Milkenstein to Herskowitz in 1894,

notwithstanding the specific reference to Block 4, Lot 11 in the 1993 quitclaim

deed from Kaufman and K&D Land Trust to Continental Searchers and the

Estate of Herskowitz and its explicit conveyance to the State by Continental

Searchers and the Herskowitz Estate in 1994. The State defended its title to

A-2823-16 26 Property VI on the basis that Continental Searchers was the assessed owner,

and a reasonable search at the time the State purchased the parcel would not

have revealed Phoenix's chain of title to this tract; in other words, that it was a

bona fide purchaser for value without notice of Phoenix's chain of title.

Property VII (Block 4, Lot 13)

Property VII, Block 4, Lot 13, also part of the land the State purchased

from Continental Searchers and the Estate of Wolf Herskowitz by deed

recorded July 8, 1994, consists of almost fifty-three acres. As with Properties

IV, V and VI, the State traces its title to Property VII through Meyer Beyer to

the 1859 Adams grant. It is the same chain of title the State asserts to Property

V (Block 3, Lot 19).

Phoenix's Efforts to Locate and Exploit Defects in the State's Titles

Phoenix acquired the sand and gravel mine adjacent to the State's

properties out of the bankruptcy of its former owner, Herbert Pickell, in 1993.

David C. Denise, president of Phoenix, testified at deposition that when

Phoenix purchased the mine, the former owner, Pinelands Materials &

Supplies, Inc., formerly known as Mt. Holly Concrete, was mining land to

which it lacked clear title. In the mid to late 1990s, Phoenix began efforts "to

A-2823-16 27 clear up the titles to . . . surrounding properties" and acquire an additional one

or two thousand acres to expand the mine.

Denise approached General Land, a subsidiary of First American, the

title insurer for three of the State's properties, about insuring the titles Phoenix

hoped to acquire in order to expand its sand mine. Denise testified at

deposition the only way General Land would consider writing the title

insurance was if "they would have their fellow Gene, Mr. Sharkey, do the

searching." Denise claimed Gene Sharkey, a searcher of many years'

experience, was paid by both General Land and Phoenix to search the entire

Isaiah Adams tract including its "26 or something exceptions and . . . multiple

chains of title through wild deeds and tax foreclosures." Denise explained that

the Adams tract was the "subject of a very large case that the State prosecuted,

Hyland v. Kirkman," and that the principal part of Sharkey's work, which took

"years and years," was directed to "trying to establish the paramount chains of

various parcels that the Adams tract was either divided into or the exceptions

to."

To that end, Phoenix employed Sharkey, as well as other title searchers

and surveyors in a two-decade long quest to research the title to "[a]ll 8,000

acres" of the Isaiah Adams tract as well as the tract the West Jersey Proprietors

A-2823-16 28 conveyed to Gideon Cranmer in an effort Denise characterized as one to

ascertain "[p]aramount title for adjacent lands." Asked at deposition as to

whether anyone considered contacting the record owners of the properties

Phoenix was interested in acquiring, those owners currently in title, Denise

claimed Sharkey wasn't interested in the current record owners. According to

Denise, Mr. Sharkey believed "that it was his job to cut through all that as he

believed everybody was directed by Hyland v. Kirkman and get to the

paramount owner and acquire title through the paramount."

Accordingly, instead of starting with the record owners and searching

backward for sixty years, as is customary, see Palamarg, 80 N.J. at 460,

Phoenix's searchers began their searches with the original grants to Gideon

Cranmer and Isaiah Adams from the West Jersey Proprietors and attempted to

trace the titles forward. Thus, in its quest to acquire lands adjacent to its mine,

Phoenix ignored the current record owners of those properties, especially the

State of New Jersey, which it surmised would be "a reluctant seller."12

12 Phoenix's surmise was likely correct. The State's lands in the Preservation Area are subject to restrictions on use and alienability. See N.J.S.A. 13:8A- 13(b); N.J.S.A. 13:8A-48; N.J.S.A. 13:8C-35(a). In addition, the agreement providing the State with the federal grant money used to purchase these properties, included in the State's appendix, requires approval by the

A-2823-16 29 When Phoenix's searchers established what they deemed was "the

paramount title" to any parcel Phoenix was interested in acquiring, Phoenix

would turn the information over to a self-trained genealogist, Jordan

Auslander,13 who performed a search for descendants of the former record

owner in an attempt to identify any living descendants from whom Phoenix

could acquire the property. Counsel for Phoenix would then contact those

individuals and offer to buy their interests. With the exception of families

already involved in prior title disputes over lands in the Pinelands, none of the

individuals he contacted was aware they possessed any putative interest in the

lands at issue.

Once counsel for Phoenix contacted the identified heirs and negotiated

the purchase of their interests, he drafted quitclaim deeds in favor of Denise.

These deeds contained both the Little Egg Harbor tax map reference to the lot

and block Phoenix was purporting to purchase as well as a description of the

property copied from the original grants from the Proprietors or old deeds that

Department of the Interior for any changes in use or management of properties acquired with the funds, including any changes in ownership. 13 Counsel for Phoenix advised the trial court in 2015 that its genealogist was under investigation in New York relating to his procurement, in connection with this case, "of death certificates from the New York City Board of Health by representing that he was a relative of the deceased, when he was not." A-2823-16 30 could be traced thereto, "together with all of the right, title and interest of the

grantor herein in and to any lands situate in the Counties of Ocean or

Burlington to which the grantor may have an interest or claim by virtue of

being one of the next of kin and heirs at law" to the ancestor in Phoenix's

"paramount title." So, for example, the nine deeds Phoenix's counsel prepared

to permit Denise to acquire what Phoenix asserted was "paramount title" to

Properties I (Block 2, Lot 11), II (Block 4, Lot 8) and III (Block 4, Lot 8A)

contained both a block and lot designation referencing the Little Egg Harbor

tax map (although not to the same lot and block as Properties I, II and III)14

and a description beginning "at a pine tree marked with four blazes and four

crosses standing south eighty-five degrees west twenty chains and eighty-five

links from a stone in the west side of the road on the top of the first hill going

from the Joshua Warren place to Tuckerton."

Phoenix's genealogist initially performed only a strict descendance

search for potential heirs. Phoenix did not ask its genealogist to search the

14 The tax map reference in the deeds to Denise from the Bodine heirs is to Block 3, Lot 15 and Block 4, Lot 10 in Little Egg Harbor and to "part of Block 115, Lot 26" in Bass River. Phoenix contends each deed also conveys Properties I, II and III as a result of the representation that the deed conveys the same lands as described in the 1861 deed from Corlis to Bodine and any lands the grantor owns in Ocean County by virtue of being one of Bodine's "heirs-at-law." A-2823-16 31 probate records of any of the descendants he identified until after it instituted

this action. Phoenix also admits its genealogist initially misidentified the

descendants of Samuel Schell, a former record owner in Phoenix's chain of

title to Property VII (Block 4, Lot 13), causing it to obtain quitclaim deeds

from individuals having no interest in that parcel. Thus, Phoenix necessarily

concedes it induced the tax assessor to list Denise as the assessed owner of

Property VII (Block 4, Lot 13) and filed suit to quiet title to that parcel without

any colorable claim of ownership.

Phoenix continued its efforts to acquire quitclaim deeds from

descendants of record owners its searchers deemed held "paramount title" to

the State's seven Properties well after it instituted this suit, supplying

additional deeds from purported heirs up until the time of trial. As Denise

explained his and Sharkey's strategy, "[t]he paramount chain ruled. [Sharkey]

was first to cross the post in New Jersey. You had the paramount chain and

you were the first to file, you own the property."

Phoenix claims title to the seven Properties at issue by way of the

following deeds to Denise, which Denise subsequently transferred to Phoenix

by way of warranty deed and largely consolidated with its sand and gravel

mine.

A-2823-16 32 Property I (Block 2, Lot 11); Property II (Block 4, Lot 8); and Property III (Block 4, Lot 8A)

Phoenix claims to have obtained title to Properties I through III in 1999

and 2000 for $23,500 through a series of nine quitclaim deeds, representing

66.67 percent of the outstanding interests, from purported heirs or legatees of

James Bodine, who died in 1874.15 Whereas the State traces its title to these

three properties to a deed from Bodine and his wife to a local farmer, Job

Corlis, in 1860, Phoenix relies on a deed purporting to transfer the same

property for the same price from Corlis and his wife, Eliza, back to Bodine

some six months later. That Corlis to Bodine deed, however, was not recorded

until 1875, a year after Bodine's death some fourteen years later, when it was

recorded in Burlington County.

Bodine died without a will. The detailed inventory of his insolvent

estate filed by his administrators does not list the property from Corlis as an

asset of the estate, even though the deed had been recorded only months

before, presumably by those same administrators. Besides a room-by-room

accounting of Bodine's 10 room house, as well as his barns and outbuildings,

15 Denise paid Ellie Eichbaum's widower $7,500 for her interest and her brother, Benjamin Cox, $5,000 for his. He paid the remaining Bodine heirs between $1,000 and $2,000 each for their interests. A-2823-16 33 businesses, partnerships and interests in boats, the inventory included

seventeen other parcels of lands and was later amended to add two additional

parcels. The property is also not included in the subsequent inventory of

Bodine's wife's estate and was never conveyed by any of his immediate heirs.

Moreover, there are no further conveyances of that property for nearly

one hundred years until 1972, when C. Roy Cox, a purported heir, conveyed

the property to his children Benjamin S. Cox and Ellie Eichbaum. The

property was never assessed to Bodine or any of his heirs after the deed to

Corlis. Instead, the State's title expert asserted the Little Egg Harbor tax

records from 1895, the earliest available, were consistent with the State's chain

of title to Properties I, II and III.

The Corlis to Bodine deed does not appear within the State's chain of

title, and there is no dispute that it was not in the State's possession when it

negotiated the purchase of Properties I, II and III from the record owners. In

the State's file produced in discovery, however, is a letter from Ellie Eichbaum

to Jerry Stout, one of the individuals responsible for acquiring Pinelands

properties for preservation on behalf of the State. The letter is dated

December 6, 1988, several months before the State purchased Property I, and

A-2823-16 34 references the "Stafford Forge WMA Project, Block 3, Lot 15, Little Egg

Harbor Township."

In the letter, Eichbaum referred to Stout's "letter of November 29 and

your recent telephone call." She expressed an interest in selling Block 3, Lot

15, not in issue in this case, "which we have paid taxes on all these years since

1974, to the state."16 Eichbaum also, however, enclosed other correspondence

referencing a title search (not included with the correspondence) she had

obtained "which proved to that (sic) we, as heirs to James Bodine, would have

a legitimate claim to about 100 acres of property in the above area." Eichbaum

wrote to Stout that "[i]f this will help you in your legal acquisition of this

property for the state we will be glad to cooperate."

The attached correspondence, dated almost fifteen years earlier, between

Eichbaum and her former lawyer and Eichbaum and the former township

attorney for Little Egg Harbor, referred to a title search that showed "James

Bodine was the last holder of a deed" to about one hundred acres scattered

across several lots in blocks 2, 3, 4 and 7 and specifically referenced her

16 Eichbaum, the assessed owner of Block 3, Lot 15, was presumably responding to a letter from the State expressing its interest in acquiring Lot 15 for preservation as part of the Stafford Forge project, which parcel the State did not ultimately acquire for reasons unexplained in the record. A-2823-16 35 claims to Block 2, Lot 11 (Property I); Block 4, Lot 8 (Property II); and Block

4, Lot 8A (Property III). Eichbaum did not assert any claim to those properties

in her letter to Stout. Instead, she noted she and her family had abandoned that

quest when their lawyer "just would not move further" in pressing their claim

with the Township in 1974.

When deposed, Stout, then retired, testified he only vaguely recalled the

letter and could not recall what, if anything, he did in response. Asked what

he would have done, Stout testified he thought "we would have worked with

the title company for them to do additional research to ensure that we were

buying the land . . . from the correct owner." Asked whether he recalled

having the title company do further research, Stout could only say he vaguely

remembered the issue and could not "recall what happened."

Property IV (Block 3, Lot 18) and Property V (Block 3, Lot 19)

Phoenix filed this action claiming to have obtained title to Properties IV

and V, Block 3, Lots 18 and 19, as part of a larger purchase of land in Little

Egg Harbor in Ocean County and Bass River in Burlington County from

Robert Kaufman, both individually and as trustee of K&D Land Trust.

Kaufman traced his title to Lots 18 and 19 to a tax foreclosure in Burlington

County. Phoenix recorded quitclaim deeds ostensibly vesting title in Denise to

A-2823-16 36 Properties IV and V, conveyed the properties to Phoenix, consolidated

Properties IV and V with Phoenix's sand mine, induced the Little Egg Harbor

tax assessor to erase the State's parcels on the Township's tax map and sued to

void the State's title to Properties IV and V, all on the basis of that chain of

title through Kaufman.

After the State's title expert issued his report in discovery, however,

opining that Kaufman could not have acquired title to property in Little Egg

Harbor by foreclosing tax sale certificates issued by Bass River, Phoenix

claimed a different basis for its ownership of those properties. Relying on the

mapping error discovered in 2003 by its surveyor, John Schweppenheiser,

Phoenix next claimed it acquired Lots 18 and 19 from the heirs of George

Kudra, who took title in trust in 1974 by deed from Burlington Company

Investment Corporation. Because the mapping error is significant, we address

it here.

As already noted, the deed into Meyer Beyer conveying the easterly

2,798 acres of the original Isaiah Adams tract lacked any metes and bounds

description. As Judge Wells noted in Hyland, when Henry Shaw, president of

Central Trust & Title, carved up the Adams tract into four separate parcels and

sold them, including the one to Beyer, he ignored all twenty-six exceptions,

A-2823-16 37 making it "impossible to locate, with any accuracy, where the tracts are on the

ground." 204 N.J. Super. at 353. Adding to the problem, Judge Wells

observed, was that "while the record title to [the other three parcels] remained

essentially stable subject to tax liens and the exceptions, Meyer Beyer's

grantees multiplied like rabbits creating a title nightmare." Id. at 353-54.

Besides creating the "corridor lots" along the eastern boundary of his

tract, Meyer Beyer divided what remained to the west of those lots into two

large parcels, conveying the northern 1,200 acres to Adolf Guttman and the

southern 1,000 acres to Anna B. Fischer. In the course of surveying the

outbound boundaries of Phoenix's consolidated Lot 9.01 subsuming the State's

parcels, Schweppenheiser concluded the easterly line of Adams was located

further east than historically believed and as reflected on the Little Egg Harbor

tax map.

Using the work of three previous surveyors of different parts of the

Adams tract and the Watson exception thereto, and after engaging in a "certain

amount of engineering," Schweppenheiser located what he believed to be the

common easterly line of the Fischer and Guttman tracts, determining it was

collinear with the western boundary of the corridor lots and parallel to the

eastern line of Adams. By establishing the western boundary of the corridor

A-2823-16 38 lots with reference to the eleventh course of Adams, Schweppenheiser claimed

he was able to conclude the easterly line of the Guttman and Fischer tracts was

thirty chains (1,980 feet) west of the easterly line of Adams, thereby placing

that line east of where it was understood to lie historically.

That mapping error is significant for the parties' competing claims of

title to Property IV (Block 3, Lot 18) and, to a lesser extent, Property V (Block

3, Lot 19).17 The State traces its title to Property IV through a tax foreclosure

judgment in favor of Pickell's estate through Bertha Boehm and ultimately to

Meyer and Mathilda Beyer's conveyance of a "corridor lot" to Sam and Paulina

Halpern. Schweppenheiser contended that Lot 18, Block 3 was not in the

Meyer Beyer corridor but instead was located within the Fischer tract. 18

Although continuing to rely on the tax foreclosure judgment in its chain of title

to Property IV, the State concedes it does not trace its title to Fischer.

17 It is less significant for Property V (Block 3, Lot 19), notwithstanding the mapping error affects it as well, as both experts agreed that Property V is properly understood to be a part of Property VII (Block 4, Lot 13). 18 If generally accepted, this alleged mapping error could have ramifications for other land titles in the area, as it places more of the Fischer tract in Little Egg Harbor and Ocean County, instead of in Bass River and Burlington County than previously understood. A-2823-16 39 The State argued, however, that Phoenix could not establish its title to

Properties IV or V based on the mapping error, even though it traces its title to

those parcels to Fischer. Phoenix's title expert, Apell, traced Phoenix's title to

Properties IV and V from Fischer to Phoenix through George Kudra and

Kupire Corporation.19 Phoenix now contends it acquired Lots 18 and 19 from

the heirs of George Kudra. It claims it acquired Kudra's interest through a

2005 settlement agreement between Denise and Phoenix on one side and

Kupire, Kudra and Kudra's wife and six children on the other, resolving a quiet

title action involving property other than Properties IV and V, and quitclaim

deeds from two of the five surviving Kudra children executed in July 2016 on

the eve of trial, which it took after becoming concerned the settlement

agreement and its deed from Kupire were not sufficient to transfer Properties

IV and V to Phoenix.

19 As noted, Apell initially claimed Phoenix's title to Properties IV and V arose out of a tax foreclosure conducted in Bass River. Just prior to his deposition in 2014, over two-and-a-half years after Phoenix filed its complaint in this action, Apell produced a hand-written chain of title tracing Phoenix's title to those parcels through Kudra. The State subsequently moved in limine to exclude at trial documents purporting to support the Kudra chain because Apell had not identified it as supporting Phoenix's claim of title to Properties IV and V in either of his two previously served expert reports. The court denied the motion and instead permitted the State limited discovery as to the basis of the claim. A-2823-16 40 At trial, the State's title expert, Grabas, opined that Phoenix could not

establish title to Lots 18 and 19 through Kudra. He asserted Phoenix's

inability to produce the trust instrument through which Kudra took title "as a

trustee according to a deed of trust given on even date herewith" in the 1974

deed from Burlington Company Investment Corporation created "a hole" in

Phoenix's title that Phoenix could not fill by quitclaim deeds from Kudra's

children.

Phoenix's expert agreed that Phoenix's inability to locate the trust

instrument referenced in the deed meant there was "a hole" in Phoenix's title to

Lots 18 and 19 created by Kudra having taken title in 1974 "as a trustee." He

also agreed Kudra could not delegate his fiduciary powers as trustee, nor could

they pass to Kudra's children through intestacy. Phoenix's expert also

acknowledged there was no record of anyone having gone to court to have a

successor trustee appointed. He nevertheless opined that Phoenix's title was

sound, analogizing to defunct corporations, "you then do the next best thing,

and that is to get the heirs of the last trustee or the heirs of the last board

officer to convey."

A-2823-16 41 Property VI (Block 4, Lot 11)

Phoenix claims to have obtained title to Property VI (Block 4, Lot 11)

through George Orlov, who took title to the property in 1908 pursuant to a

deed recorded in Burlington County "correspond[ing] roughly to Block 4, Lot

11" on the tax map of Little Egg Harbor, before it was altered at Phoenix's

request. The Orlov deed, however, purports to transfer approximately one

hundred acres in the Township of Bass River. The deed does not mention land

in Little Egg Harbor and does not appear in the Ocean County land records,

being recorded only in Burlington County. Further, neither Orlov nor any of

his heirs appear as assessed owners of Property VI in the Ocean County tax

records going back to 1895, those records being consistent with the State's

chain of title out of Continental Searchers. The State's title expert opined

Phoenix's chain of title was unsupported in the Ocean County land records

prior to 1994 when the State acquired its deed from the record owners.

In a supplemental report, Phoenix's title expert stated that "[u]pon

further research," the 1894 deed from Beyer to Kolmer and Herrman, from

which Orlov's title allegedly derived, was recorded on July 6, 1971 in Ocean

County. Apell, noting that Little Egg Harbor became part of Ocean County

eighty years prior in 1891, asserted that fact

A-2823-16 42 together with the fact that the Adams tract traces to deeds recorded in Burlington County, . . . further demonstrates that one must search titles in both Burlington and Ocean Counties back to the Board of Proprietors in order to conduct a reasonable search in connection with the properties at issue in this matter.

Phoenix tasked its genealogist with developing a "family tree" for

George Orlov, which the genealogist deemed complete through Orlov's seven

children and "reasonably believed to be complete" through Orlov's ten

grandchildren. The genealogist identified twelve living heirs of George Orlov.

Counsel for Phoenix arranged for Denise to take quitclaim deeds from ten of

them in 2000 and 2001.20 Phoenix received the last of the deeds it took from

Orlov's living heirs in 2012, after filing this suit. Phoenix represents in its

brief it paid the Orlov heirs $65,943 for 97.5 percent of the Orlov interests in

Property VI.

Phoenix and the State both trace their title to Property VII, Block 4, Lot

13, to the same 1894 deed from Isadore Milkenstein to Wolf Herskowitz

20 Phoenix initially offered the Orlov heirs $18,000 for the approximately eighty acres it believed they owned. In a letter from a representative of the family to counsel for Phoenix, the family rejected that offer. Writing that they did "not want to sound ungrateful, for if it were not for your client, we would never have even found out about the Orlove [sic] property," they stated they would not sell for less than $1,000 an acre. A-2823-16 43 conveying a 150-acre rectangular tract, part of which lies in Bass River in

Burlington County and part in Block 4, Lot 13 of Little Egg Harbor. The deed

was initially recorded in Burlington County in 1900. It was not recorded in

Ocean County until 1971. Phoenix claims its title to Block 4, Lot 13 derives

from a deed Herskowitz gave to Samuel Schell in 1908. Although that deed

states no fewer than four times that Herskowitz is conveying only ten acres to

Schell, the description in the deed is the same one as in the deed into

Herskowitz, which conveyed all 150 acres.

Based on the work of its genealogist, Phoenix initially obtained

quitclaim deeds from two individuals eventually determined not to be heirs of

the Samuel Schell of the 1908 deed. Phoenix thereafter obtained quitclaim

deeds after the litigation was filed from two individuals it contends are the

correct Schell heirs at a total cost of $20,000 for their 75.73 percent interest.21

Although Gene Sharkey, who performed Phoenix's title searches and

who died before trial, had opined that Schell received only ten acres from

Herskowitz, and that the State had title to the remaining 140 acres, the expert

21 Although these deeds purport to convey "the same premises conveyed by Wolf Herskowitz to Samuel Schell by Deed . . . recorded on February 28, 1910," the quitclaim deeds differ significantly from the 1910 Schell deed by omitting the statement repeated four times in that deed that it only conveyed ten acres. A-2823-16 44 who testified for Phoenix at trial, Erwin Apell, opined that the references to

conveying only ten acres had "very little significance" because "it doesn't

indicate where the ten acres is." Apell testified "under the rules of

construction . . . if there are two types of descriptions, one being a metes and

bounds and the other being an approximate acreage, that the metes and bounds

would control."

The State's title expert opined the language of the deed from Herskowitz

to Schell conveying "a tract of ten acres" coupled with the description in the

deed which begins by referring to "[a]ll ten acres of the 150 acres of land,

situated, lying and being in the Township of Bass River, in the County of

Burlington" make clear Herskowitz conveyed ten acres to Schell in Bass River,

not 150 acres in Little Egg Harbor. The State's expert opined Herskowitz's

ten-acre conveyance to Schell is corroborated by the deed Herskowitz gave to

his brother-in-law, Abraham Perlman, two years later conveying the same

described 150 acres as security for a loan, but explicitly "excepting ten acres

of said parcel or tract of land heretofore sold and conveyed by the parties of

the first part to Sam Schelies." The same exception is included when Perlman

conveyed the property back to Herskowitz the following year. Based on an

examination of all four deeds, the State's expert opined that Phoenix possessed

A-2823-16 45 no title to Block 4, Lot 13, and, at best, has an interest in an undescribed ten-

acre tract in Bass River.

Phoenix's Efforts to Establish Peaceable Possession of the State's Properties

Neither Denise, Phoenix, nor any of the individuals from whom they

obtained quitclaim deeds was ever in possession of any of the seven State

Properties at issue here. In an attempt to establish the peaceable possession

necessary for a quiet title action, see N.J.S.A. 2A:62-2, counsel for Phoenix

surreptitiously, without any notice whatsoever to the State, approached the tax

assessor for Little Egg Harbor with its purported "paramount" chains of title to

the State's properties, asking that Denise be listed as the owner. Because we

find the request from counsel so extraordinary, we reprint the letter in full.

Martin J. Conroy, Esq. c/o Phoenix Companies 777 Alexander Road Princeton, New Jersey 08540 Telephone 908-468-xxxx Facsimile 609-734-xxxx

April 10, 2001

Mr. Joseph Sorrentino Tax Assessor Township of Little Egg Harbor 7 Gifford Road Little Egg Harbor, NJ 08087

A-2823-16 46 RE: Block 4, Lot 11 Block 2, Lot 11 Block 3, Lots 11 and 12 Block 4, Lots 8 and 8A Block 7, Lot 6

Dear Mr. Sorrentino:

Enclosed are various recorded Deeds pursuant to which Mr. David Denise has acquired the interests of most of the heirs of Gorge Orlov in property that includes Block 4, Lot 11 [Property VI] on the Little Egg Tax Map. Also enclosed is the 1908 Deed from Herrman and Kolmer to George Orlov that follows an unbroken chain of title from the original Isaiah Adams severance from the Board of Proprietors. Our title searchers have advised that this land was never conveyed by George Orlov and that record title remained in George Orlov. Enclosed is a copy of our searcher's report.

We recognize that the State of New Jersey Department of Environmental Protection claims title to this property by virtue of a Deed from Continental Searchers, Inc. (believed to be affiliated with J&M Land) and the Estate of Wolf Herskovitz. That Deed purports to convey Block 4, Lot 11 [Property VI], Block 4, Lot 13 [Property VII], and Block 3, Lot 19 [Property V] on the Little Egg Tax Map. We have plotted the description in the 1894 Milkenstein to Herskovitz Deed. This Deed would be the basis of any title the State may have. It describes by metes and bounds Block 4, Lot 13 [Property VII] and Block 3, Lot 19 [Property V]. Block 4, Lot 11 [Property VI] is not within the description. Enclosed is our title searcher's plotting of the Milkenstein/Herskovitz

A-2823-16 47 Deed. The State's ownership claim is inferior to that of Mr. Denise.

Enclosed is a copy of our title searcher's report on the above matter. Based on this, we request that Mr. Denise be listed as the owner and be assessed for the taxes on Block 4, Lot 11 [Property VI].

You may also recall that last year Mr. Denise obtained title from the heirs of James Bodine. We have recently done additional plotting and title work in connection with Mr. Denise's holdings. It now appears that Mr. Bodine, at the time of his death, owned of record not only the triangular shaped piece described in these Deeds (GG240, corresponding to Block 4, Lot 10 and Block 3, Lot 15), but also the property separately described and known as GG286 containing a net of approximately 79 acres. The lots included within that description are Block 2, Lot 11 [Property I], Block 3, Lots 11, 12, and 14, Block 4, Lots 8 and 8A [Properties II and III], and Block 7, Lot 6. Enclosed is the paramount title report. To make sure of our conclusions, we examined the title claims of the DEP with respect to these properties. Our searcher again concluded that these were inferior chains of title. We have enclosed these reports with respect to Lots 8 and 8A; similar reports were produced for the smaller lots.

Based on this, we request that Mr. Denise be listed as the owner and assessed for taxes on Block 2, Lot 11 [Property I], Block 3, Lots 11, and 12, Block 4, Lots 8 and 8A [Properties II and III], and Block 7, Lot 6 on the Little Egg Harbor Tax Map.

Should you have any questions or need any further information, please do not hesitate to call.

A-2823-16 48 Very truly yours, /s/ Martin J. Conroy

MJC:cad Enc. cc: Mr. David D. Denise (w/o enc.)

That letter was not copied to the State. The only person copied was

Denise. Pursuant to Phoenix's request, first in 2001 and again in 2005, in

another letter not copied to the State, the Little Egg Harbor tax assessor

changed the assessed owner of each of the State's seven Properties to Denise

on the Township's assessment list and removed the legend "exempt – NJDEP"

from each of the State's Properties on the Little Egg Harbor tax map based on

Phoenix's claim that the State's title to those Properties was "inferior" to that

Denise had recently acquired by way of quitclaim deeds from distant heirs of

former record title owners.22

22 Phoenix did not seek to have itself listed as the assessed owner of Property VII (Block 4, Lot 13) until 2005, after its 2003 lot consolidation. Although the testimony on this point is not perfectly clear, it appears as if the assessor added Denise as an owner of that parcel instead of removing the State, based on Conroy's assertion that "[a]lthough a solid legal argument exists that the Deed from Herskowitz to Schell conveyed legal title to the entire 150-acre tract described in the metes and bounds, the issue is not entirely free from doubt because of the inconsistent reference to 10 acres contained in the Deed." Based on Conroy's assertion "that the Schell deed must be given some effect and that Mr. Denise has an ownership interest in at least a proportion of Block

A-2823-16 49 After Denise conveyed the quitclaim interests he had acquired in the

State's Properties to Phoenix by warranty deed, Phoenix executed the

penultimate step in its scheme to annex the State's lands. In a deed from

Phoenix to Phoenix, Phoenix consolidated its purported title to five of the

State's seven Properties with its sand and gravel mine and applied to the tax

assessor for a new block and lot designation encompassing 675 acres,

including 130 acres belonging to the State.23 In 2005, Little Egg Harbor issued

a revised tax map erasing the State's parcels and consolidating five of the

seven with Phoenix's sand mine into new Block 3, Lot 9.01, assessed to

Phoenix.

The State deposed the surveyor, John Schweppenheiser, who prepared

the boundary survey for the consolidated parcel relying on information

supplied by Phoenix. Although undertaking no title research himself,

4, Lot 13 [Property VII]," and Conroy's request that Denise accordingly "be assessed as the owner of Block 4, Lot 13," the assessor permitted Denise to pay taxes on the entire parcel. 23 Phoenix's 2003 lot consolidation did not include Properties I (Block 2, Lot 11) or VII (Block 4, Lot 13). The consolidation deeds also do not reference Property V, although Phoenix's pleadings aver that both Properties IV (Block 3, Lot 18) and V (Block 3, Lot 19) are part of consolidated Block 3, Lot 9.01. The parties agree that Phoenix's consolidated Lot 9.01 includes 130 acres of land titled in the State. A-2823-16 50 Schweppenheiser testified "[t]here was not a chain of title that we were aware

of that would validate [the State's] properties, so we kind of surveyed the

boundary around them." Schweppenheiser acknowledged he saw the tax map

listing the properties as owned by the Department of Environmental Protection

but claimed he was not concerned because Phoenix had advised him it was

"buying all those properties."

The State also deposed the Little Egg Harbor tax assessor, who testified

he changed the township's tax records without any idea of whether the title

information was accurate. He simply accepted the representation of Phoenix's

counsel. Phoenix now admits, as it must, that it approached the tax assessor to

change the assessed ownership of Properties IV (Block 3, Lot 18), V (Block 3,

Lot 19) and VII (Block 4, Lot 13) without any color of title at all, having based

its claim of ownership of Block 3, Lots 18 and 19 on tax certificates issued by

Bass River and of Block 4, Lot 13 on quitclaim deeds from the wrong Schells.

The tax assessor further testified at deposition that he had been

discussing the changes with Phoenix's counsel for over a year before he finally

made them, and that the two talked about the properties "becoming taxable."

When asked why he didn't notify the State of those discussions or of the

Township relisting the State's properties under other ownership, the tax

A-2823-16 51 assessor testified that Phoenix's counsel indicated he was notifying the State.

The tax assessor also confirmed he was aware the State would not receive any

notice of the changes from the township because of its "tax-exempt owner

status."

At his own deposition, counsel for Phoenix testified he never notified

the State of the changes he sought to the Little Egg Harbor tax map on behalf

of Denise and Phoenix. Denise at his deposition likewise testified he never

made any attempt to contact the State about his interest in the State's

properties. Asked why, he testified, "I don't know." It takes no imagination to

guess the reason why Denise, Phoenix and their counsel chose not to advise

the State that Denise and Phoenix had the State's properties erased from Little

Egg Harbor's tax map. It wasn't enough to establish competing chains of title

and work the changes to the tax map; to quiet the title Phoenix also needed to

demonstrate that it or Denise had paid the taxes on the State's parcels for five

years. See N.J.S.A. 2A:62-2.

The State only learned of the changes Phoenix had worked to the tax

rolls and map of Little Egg Harbor when a resident of Warren Grove wrote to

the Department's Green Acres Program in mid-2008 about "the newly created

Lot 9.01 within tax map Block 3 of the Little Egg Harbor tax map." The

A-2823-16 52 resident explained that "the Cedar Bridge Branch of the East Branch of the

Wading [a.k.a. Oswego] River. . . . a locator reference for several properties

belonging to the late Job and Eliza Corliss [sic]," was being "enlarged to create

a huge artificial lake." 24 He wrote that his "further investigations into the

impact [of] this channel alteration . . . as it applies to [his] property or title

rights suggest the existence of title conflicts with the newly created Lot 9.01

within Block 3 of the Little Egg Harbor tax map."

Specifically, the resident wrote:

It appears as though one of those title conflicts is 2 lots having the NJDEP as its owner. My investigations of the public record suggest that these lands situated within the newly created Block 3, Lot 9.01 were known as Block 4, Lots 8 and 8.01 [Properties II and III] on the previous [Little Egg Harbor] tax maps. Examination of aerial photographs circa 1960 indicated the location of the aqua stream channel, which is suitable for graphical plotting of various parcel locations that makes me believe that the Phoenix Pinelands Corporation has entered into these lands for purposes of obtaining title rights by adverse possession. Further investigation suggests that these lands were acquired in Fee Simple Absolute by the NJDEP under the criteria of the Pinelands Green

24 Denise testified at deposition that Phoenix had substantially expanded this waterway, which he named "Lake Wilber," by dredge mining sand. Denise testified he acquired interests in the State's Properties because it makes it "much easier to expand our Lake Wilber, it's adjacent." When asked why it was easier, Denise replied, "Because it's a dredging operation, dredge keeps digging. . . . [m]ineral's defined and it's adjacent, so it's desirable." A-2823-16 53 Acres Acquisition Program within the National Pinelands Reserve. In addition, further searching of the public record does not disclose any conveyance from the Department of Environmental Protection to the Phoenix Pinelands Corporation.

....

Another of my concerns is what other titleholders land may be forgotten about because of their title rights have been abandoned in the public record by this tax lot consolidation. One of those titleholders may be me. I may be a victim of this recent recording of this "breaking of the record" boundary description. Is this an attempt to hide real property interest by breaking the chain of title record? Could this result in the lot consolidator acquiring land titles by the Doctrine of Adverse Possession? Thus, he avoids the problems of the unwilling seller and related compensation.

The resident enclosed copies of both the old and new tax maps and expressed

the hope "that this open and host[ile] act will not necessitate the filing of an

action of Ejectment with the Superior Court of New Jersey to [quiet] the

adverse possession by the Phoenix Pinelands Corporation and restore historical

title interest to those lands being possessed."

Following an investigation into the allegations of the letter, the State

wrote to the individual responsible for maintaining the tax map in Little Egg

Harbor, copying ten individuals, including the mayor of Little Egg Harbor,

Phoenix, its surveyor, the administrator of the Green Acres program, and the

A-2823-16 54 Attorney General's Office, about the errors in the tax maps resulting from the

township having "consolidated lots" so as "to eliminate lots previously

indicated as State-owned" based on a survey and deed description "in a

'Corrective Deed of Consolidation' recorded in Ocean County . . . from

Phoenix Pinelands Corporation to itself."

Specifically, the State noted Little Egg Harbor had consolidated the

following State lands into Block 3, Lot 9.01:

Former Block 4, Lot 8 [Property II] (41.682 acres acquired by the State by deed from the Barnegat Rifle and Pistol Club, Inc. on March 27, 1990 recorded in DB 4826, PG 768);

Former Block 4, Lot 8.01 or 8A [Property III] (2.955 acres acquired by the State by deed from Edith Warren Kueppers and Robert Kueppers, Husband and Wife on April 23, 1990 recorded in DB 4832, PG 931);

Former Block 3, Lot 18 [Property IV] (6.630 acres acquired by the State by deed from Estate of Herbert L. Pickell et als on January 14, 1994 recorded in DB 5147, PG 456);

Former Block 3, Lot 19 [Property V] (0.0439 acre) and Block 4, Lot 11 [Property VI] (65.829 acres, both lots acquired by the State by deed from Continental Searchers et als on July 1, 1984 recorded in DB 5178, PG 776); and

Block 4, two separate parts of Lot 14 (both portions combined contain an estimated 25 acres although the new tax map suggests only 7.17 acres – the entire lot

A-2823-16 55 was 317.57 acres and is now 311.40 acres on the tax map – the entire lot 14 was acquired by the State by deed from David Friedman et als on January 2, 1990 recorded in DB 4809, PG 343).

The writer noted he had plotted the description contained in the

consolidated Phoenix deed and "confirmed that it creates a substantial deed

overlap and creates a cloud on title of more than 100 acres of State-owned

lands." Requesting "that you put the State-owned lots back on the tax map,"

the State noted it had continuously made PILOT payments since acquiring the

Properties, that there was "no valid reason for the lots to have been

consolidated," and that it would "have hoped that the Township" would have

consulted the Department "before taking such action." The State also noted it

would be notifying its title insurers of the claim by Phoenix. 25 Phoenix's

counsel responded, disputing "that the State of New Jersey has title to any of

the properties," and asking that no changes be made to the Little Egg Harbor

25 The State represents it spent the next two years "corresponding" with its title insurers, one of which, First American, had insured Phoenix's competing titles, while the companies researched the State's titles. When Phoenix instituted this action in 2011, Chicago Title Insurance Company, insurer of three of the State's titles, initially represented the State alongside the Attorney General, but eventually elected to pay the policies, citing its in-house counsel's conflict of interest. A-2823-16 56 tax map until Phoenix has had the opportunity to present its title documents for

review. This litigation followed.

The Litigation

Phoenix filed a two-count complaint for quiet title and quia timet in the

Chancery Division.26 The State answered and filed a counterclaim against

Phoenix for quiet title. After initial expert reports were exchanged but before

the conclusion of discovery, the State moved for summary judgment

dismissing Phoenix's complaint based on Phoenix's secretive and inequitable

conduct in clouding the State's title. Phoenix cross-moved for partial summary

judgment declaring it the owner of Property VI (Block 4, Lot 11). Judge

Buczynski granted the State's motion, in part, and denied Phoenix's cross-

motion.

Judge Buczynski began his decision by noting that neither the

Legislature nor "the chancellors who have ruled in the past could have quite

contemplated the evolution of a case" like this one. He noted that "[q]uiet title

26 Although Phoenix named over 100 defendants in its complaint, the State was the only defendant to answer, other than First American. Phoenix voluntarily dismissed certain defendants, and final judgment by default was entered against all defendants failing to appear, after trial. A-2823-16 57 actions are intended to clear title when there's a cloud on title for the person in

possession." They are not intended "to create title out of whole cloth or

shortcut rigorous requirements of the law in making determinations as to

actual ownership."

The judge rejected Phoenix's contention it had established the requisite

peaceable possession to permit it to quiet title against the State,

notwithstanding its deeds and proof of tax payments. See N.J.S.A. 2A:62-2.

He found Phoenix could not establish actual possession of the State's lands by

its limited activity of cutting fire lanes or erecting signs on the property. He

also rejected Phoenix's claim that it was entitled to a presumption of peaceable

possession by its payment of the real estate taxes on the parcels for five years.

Noting the "extensive research" Phoenix undertook to acquire its competing

titles, Judge Buczynski added that Phoenix "caused the Little Egg Harbor

Township tax assessor to change the [tax map]. They went on and did certain

activity on the property." The judge found Phoenix's acts did not demonstrate

"peaceable possession of the property" but instead acts "adverse to somebody

who is in peaceable possession of the property."

Although finding the State was entitled to a presumption of peaceable

possession of its Properties, Judge Buczynski nevertheless determined the

A-2823-16 58 State could not maintain a quiet title action against Phoenix, because Phoenix's

action, including its quia timet claim, which the judge determined could go

forward, was already pending when the State asserted its counterclaim. See

N.J.S.A. 2A:62-1 (permitting any person in peaceable possession of lands

whose title is denied or disputed to maintain an action in the superior court to

settle the title "when no action is pending to enforce or test the validity of such

title"). The judge accordingly dismissed the State's counterclaim to quiet title,

notwithstanding Phoenix had not moved for such relief. Although concluding

that neither party could pursue a quiet title action, Judge Buczynski found both

could pursue their quia timet claims and could amend their pleadings to add a

statutory claim for ejectment, N.J.S.A. 2A:35-1, which would be adjudicated

in the General Equity action. See Perlstein v. Pearce, 12 N.J. 198, 201 (1953)

(holding suit in chancery to quiet title by one not in possession should not have

been dismissed but retained to determine ejectment claim); Boardwalk Props.,

Inc. v. BPHC Acquisition, Inc., 253 N.J. Super. 515, 526 (App. Div. 1991)

(noting "[t]he jurisdiction of the Chancery Division to adjudicate all

controversies brought before it and render both legal and equitable remedies ").

Judge Buczynski denied Phoenix's motion for partial summary judgment

on Property VI. The judge found he could not make a determination as to title

A-2823-16 59 based on the information provided on the motion, but would require expert

testimony, concluding "to the extent . . . plaintiff is arguing . . . that they have

paramount title to any" property, that "remained a question of fact" for

ultimate determination.

Finally, Judge Buczynski "recognize[d] a very valid argument raised by

the [State]" in response to Phoenix's quia timet claim, which could also be

raised in defense of ejectment, "that, in fact, [Phoenix] may have been heir

hunting." Recounting the efforts Phoenix undertook to first research the title

to Property VI, finding a 1908 deed into George Orlov, ascertaining and then

locating his living heirs, and eventually acquiring "nine different deeds," Judge

Buczynski explained

[t]he reason why the court puts those details on the record is because it is important to make the record clear to the extent to which the plaintiff went in attempting to obtain title essentially out from under the claim of the State of New Jersey who had claimed title for several years prior to [Denise and Phoenix] acquiring these deeds.

The judge also acknowledged Phoenix's argument that its "actions in acquiring

the deeds [was] not heir hunting," and "that their heir hunting is nonetheless

not prohibited anyway" because "if someone doesn’t own title to a specific

piece of property at all, [someone else] can still attempt to obtain clear title to

A-2823-16 60 that particular property." Judge Buczynski determined he would address those

arguments in the context of further proceedings.

Following Judge Buczynski's retirement, a different judge heard the

parties' cross-motions for summary judgment at the conclusion of discovery.

Phoenix first argued the State could not be considered a bona fide purchaser

for value because of its awareness of certain deeds through which Phoenix

traced its title as a result of the State's involvement in prior quiet title actions

in the Pinelands and was, at the very least, under a duty to make inquiry as to

Eichbaum's claim before purchasing the three parcels making up the Bodine

tract. Phoenix further argued that as the State could not trace its title to any of

the seven Properties to the Council of Proprietors, and Phoenix could, it was

entitled to summary judgment on its ejectment claim.

The State both opposed Phoenix's motion and argued its own entitlement

to summary judgment. As to Phoenix's motion, the State argued Phoenix had

failed to prove its title free from all reasonable doubt and thus was not entitled

to eject the State from its lands. The State pointed out specific errors in

Phoenix's genealogical research. It also noted Phoenix had not advised its

genealogist it was seeking to acquire title based on his research, resulting in

the genealogist undertaking only a straight descendancy search, ignoring wills

A-2823-16 61 and probate records through which title may have been directed. The State

argued it was thus reasonable to suspect that Phoenix had not acquired the

interests of all persons through which it claimed title. The State further argued

there were material facts in dispute, and that the court needed to hear from the

parties' title experts as they held different opinions as to what constituted a

reasonable title search and what it would have disclosed of deeds in Phoenix's

chain of title to Property VI when the State purchased it.

As to its own motion, the State argued it was entitled to summary

judgment dismissing Phoenix's claims because the facts of Phoenix's "heir

hunting are irrefutable and the law is clear." The State contended "public

policy favors maintaining the integrity and stability of the recording system,"

and Phoenix's actions undermine that system. The State claimed it acted

reasonably in identifying the record owners of the seven parcels and relying on

its title searchers in acquiring their interests. The State argued it could not

reasonably anticipate being subjected — thirty years later — to the

"unconscionable efforts of a third-party interloper whose interest is not in

protecting the interests, if any, the [State] may have legitimately missed but

rather in furthering its own pecuniary gain." Pointing to the many years and

vast amount of money Phoenix spent surreptitiously "searching for defects to

A-2823-16 62 exploit," all the while aware of the State's record ownership and without notice

to the State of those efforts or of the changes Phoenix worked to the municipal

tax map to erase the State's preserved parcels and annex these environmentally

sensitive lands to Phoenix's sand mine, the State argued Phoenix's actions were

unconscionable and "destabilizing, as they leave record owners vulnerable to

unpredictable attacks on their title."

The new judge dismissed the State's heir hunting claims out of hand,

characterizing them as a "contention that [the State] is entitled to a specific or

some kind of special status for public policy reasons." The judge found "to

apply such a rule would permit a presumption in favor of the State, . . . prior to

determination of title," which is "not supported by law." Indeed, the court

found "the Constitution provides protections against that very thing,"

referencing "the due process and taking clauses." 27

27 While it is true "[t]he New Jersey Constitution provides protections against governmental takings of private property without just compensation, coextensive with the Takings Clause of the Fifth Amendment of the United States Constitution," Klumpp v. Borough of Avalon, 202 N.J. 390, 405 (2010), the State compensated the sellers from whom it purchased these Properties based on appraisals reflecting pre-Pinelands regulation land values. As the State has not engaged in either a physical or regulatory taking here, see ibid., and whatever "title" Phoenix can prove it acquired in the State's lands are impressed with a constructive trust, there has been no constitutional taking of these Properties. Takings doctrine simply has no applicability to this matter.

A-2823-16 63 The judge dismissed the State's "attempts to impute Phoenix's motives as

somehow sinister for seeking only pecuniary gain." Although noting the

"slightly different context," the judge quoted the Supreme Court's opinion in

Simon v. Rando, a tax sale foreclosure case, where the Court stated it was "'not

eager to impose a set of morals on the marketplace. Ordinarily, we are content

to let experienced commercial parties fend for themselves . . . .' In pursuing

their self-interests to maximize their profits, the parties make possible the

achievement of socially desirable objectives." 189 N.J. 339, 344 (2007)

(quoting Simon v. Cronecker, 189 N.J. 304, 330 (2007)).

Citing Bron, the judge found "[m]ore to the point[,] heir hunters are

generally defined as interlopers seeking to dispossess householders," "[a]nd

not someone with a bona fide interest in the property," as in Walter v. Sands,

191 N.J. Super. 362, 368 (App. Div. 1983). Because Phoenix was an adjoining

property owner, the judge found Phoenix had "a bona fide interest," in

becoming the owner of the State's preserved lands, and thus concluded its

conduct "cannot be characterized as exploitive," (quoting Walter, 191 N.J.

Super. at 368). The judge concluded the State's "heir hunting allegations . . .

Phoenix's argument in its brief urging the contrary is without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E). A-2823-16 64 are without merit in this case and are not dispositive." Instead, he determined

"this matter is about who owns paramount title."

In addition to rejecting the State's heir hunting claims, the judge also

granted Phoenix summary judgment on Properties I (Block 2, Lot 11), II

(Block 4, Lot 8), III (Block 4, Lot 8A), and VI (Block 4, Lot 11), rejecting the

State's claim it was a bona fide purchaser for value without notice. As to

Properties I through III (Block 2, Lot 11 and Block 4, Lots 8 and 8A), the

judge noted there was no dispute that Bodine conveyed the property to Corlis

in 1860. The dispute was over the validity of a deed from Corlis back to

Bodine the following year, that was not recorded until after Bodine's death

fourteen years later.

The judge rejected the State's title expert's opinion that Bodine's failure

to record the deed during his life and its omission from the meticulous

inventory of his insolvent estate, which included his homestead and 18 other

properties to be sold by the appointed administrators, presumably the same

individuals who found and recorded the deed from Corlis after Bodine's death,

rendered the validity of the deed questionable. The judge found those

circumstances cast no doubt on Phoenix's recorded deed, instead agreeing with

A-2823-16 65 Phoenix that in the absence of any proof of forgery,28 the deed's

acknowledgment and recording rendered it presumptively valid. The judge

further found that the 1861 Corlis to Bodine deed recorded in Burlington

County in 1875 "would have been discoverable through a reasonable search,"

and thus that Phoenix's "chain of title through Bodine is superior."

As to Property VI (Block 4, Lot 11), the judge rejected the opinion of the

State's title expert that a reasonable search would not have revealed Phoenix's

chain of title when the State purchased that parcel in 1994. The judge instead

found that notwithstanding the 1908 Orlov deed on which Phoenix relied refers

to the property being in Bass River, Burlington County and was not recorded

in Ocean County, "the metes and bounds describes the Little Egg Harbor tract"

and "explains why the reasonable search tracing the origins title should have

included both [Burlington and Ocean] Counties, particularly in light of the

28 As to the judge's comments regarding forgery, Phoenix apparently did not obtain the original signed deed from Corlis to Bodine from either Benjamin Cox or any of the other Bodine descendants from whom it took quitclaim deeds for their fractional interests, as it is not part of the record. The recorded deed, although in long hand, is, of course, only a copy, almost certainly copied from the original by a scrivener in the county clerk's office. See 3 Patton and Palomar on Land Titles § 700 (Joyce Palomar ed., 3d ed. 2020). There is thus no ability today, 140 years later, for anyone to judge whether the signatures are genuine, and thus muster proof of forgery. A-2823-16 66 DEP's prior experiences."29 The judge dismissed as immaterial the State's

claim that Phoenix was not in possession of deeds from all the Orlov heirs

when it instituted the action, and rejected its objection to the lack of probate

records as "mere speculation" insufficient to defeat summary judgment.

The judge declared Phoenix to be "the owner of fee simple title" to

Properties I (Block 2, Lot 11), II (Block 4, Lot 8), III (Block 4, Lot 8A), and

VI (Block 4, Lot 11), voided the State's deeds, ejected it from the premises and

denied the State's motion to stay the judgment.

We granted the State's motion for leave to appeal the stay order and

summarily reversed. We remanded the matter to the trial court to promptly

issue a stay, thereby "preserving the status quo with respect to this

environmentally sensitive Pinelands property, pending the conclusion of the

trial court litigation." Although concluding "that the underlying litigation

appear[ed] to present a significant legal issue," we nevertheless denied leave to

29 The judge was presumably referring to the Department of Environmental Protection and the Attorney General's role in bringing Hyland v. Kirkman, which the State instituted to "rectify a massive fraud upon the courts and land recordation system of the State," involving land titles in the Pinelands. 157 N.J. Super. 565, 570 (Ch. Div. 1978). Judge Buczynski had previously struck requests for admissions by Phoenix directed at Hyland, finding the State's legal opinions as to whether "something was a wild deed" in that case irrelevant to the matter at hand because those are "legal conclusions that are in the province of the court." A-2823-16 67 appeal the summary judgment, noting that "novel issues are best decided on

the basis of a complete factual record."

Following a three-day trial to determine, in the judge's words,

"paramount claims in competing chains of title," at which Phoenix's

genealogist, title expert and surveyor testified, along with the State's title

expert, surveyor and one fact witness, a Kudra heir who testified on behalf of

the State,30 the judge entered judgment for Phoenix on the remaining

properties. As to Properties IV and V (Block 3, Lots 18 and 19), the judge

rejected the State's claim that Phoenix's inability to locate the trust pursuant to

which Kudra took title from Burlington County Investment Corporation as

trustee was fatal to its claim to legal title to those parcels.

The judge accepted the testimony of Phoenix's title expert that the

"failure to locate trusts pertaining to deeds was not an uncommon issue. And

30 Ireen Kudra-Miller testified she believed her father was the George Kudra in the 1974 deed from Burlington Company Investment Corp., based on the office address listed in the deed. She had no information about the trust referenced in that deed, however. Asked about the quitclaim deeds she and her sister gave to Phoenix, she testified they initially refused Phoenix's demands in 2015 to sign those deeds because they "had no idea what it was about," or "where the property was located, what block and lot number they were referring to," and that it had been "over 40 years ago that these things were done by [their] father." Kudra-Miller testified she and her sister finally agreed to sign the deeds only after Phoenix's litigation counsel threatened to sue them, and only after they received an indemnification agreement from Phoenix. A-2823-16 68 that under those circumstances, it was common, in order to obtain title, that

one would generally obtain deeds from the trustee's heirs, which is what

Phoenix did." The judge pronounced himself

satisfied that as a trustee, Kudra's heirs were beneficiaries of title and it had passed to them. That is, it was appropriate for Phoenix to obtain title from the heirs of Kudra as a trustee to the property under the circumstances as testified to by [plaintiff's title expert] Apell, and the [c]ourt is in agreement, that would be the appropriate course, and that is consistent with Zabriskie v. Morris & Essex R.R. Co., 33 N.J. Eq. 22, 27 (Ch. 1880).

Phoenix having obtained quitclaim deeds from the Kudra heirs, the court ruled

Phoenix "holds legal title to Lots 18 and 19."

The judge also found that Lots 18 and 19 "do not plot within the

foundation deeds in the [State's] title." He concluded that Bertha Boehm, the

State's predecessor in title to Lot 18 "never owned Lot 18," notwithstanding

her deed, because the deed description does "not describe Lot 18." The judge

also rejected the State's contention that Lot 19 was a part of the Milkenstein

tract, as Phoenix's title expert also maintained in his initial report, instead

concluding that Lots 18 and 19 are both located further west, outside the

Meyer Beyer corridor, and were part of the Fischer tract based on the mapping

error discovered by Schweppenheiser. Because the deed to Fischer predated

A-2823-16 69 the deed to Milkenstein, the judge concluded "the subsequent conveyance . . .

to Milkenstein as to Lot 19 . . . is therefore a nullity."

The judge declared himself "satisfied that Lots 18 and 19 are in Ocean

County and were encompassed in the Kudra deed as trustee," that they were

conveyed to Phoenix as part of the Kudra settlement agreement and

consolidated into Lot 9.01. The judge concluded "[a]s a result of the

settlement and the subsequent execution of deeds by the heirs of Kudra," that

Phoenix had equitable title to Lots 18 and 19, which "is sufficient to award

judgment [in] ejectment and quia timet action, as well as legal title consistent

with Zabriskie."

As to Property VII (Block 4, Lot 13), the judge found that although

Herskowitz's "probable intent" was to convey only ten acres to Schell in the

1910 deed, as stated therein, those ten acres were not specifically described

and cannot be plotted. The judge instead found that Herskowitz's inclusion of

a description of the entire 150 acres he had acquired from Milkenstein fourteen

years before in an 1894 deed made that metes and bounds description

controlling, based on the testimony of Phoenix's title expert Apell that when

"there is a conflict between the recital and the operational portion of the deed,

the specifics of the operational section controls."

A-2823-16 70 The judge declined to consider the deed from Herskowitz to Perlman two

years later conveying the same described 150 acres "excepting ten acres of said

parcel . . . heretofore sold and conveyed . . . to Sam Schelies" as further proof

that Herskowitz had not conveyed the entire 150-acre parcel to Schell, because

it "was not an actual conveyance" but only security for a loan. Specifically,

the judge found "[t]he fact that the Perlman deed was a security interest may

have some bearing on the value of the language of the deed." The judge

observed that "had the Perlman deed actually been a conveyance for property,

it's likely that the issue would have been resolved at the time and I think more

weight could be given to the language." The judge further found the ambiguity

in the deed "should be held against Herskowitz," and "creates an obligation of

the subsequent grantees to address the conflict manifest in the deed." Having

failed to do so, the judge found "the chain of title created by the conveyance

and reconveyance of the Perlman deed is inferior to the Schell deed."

The judge thus found that Herskowitz effectively conveyed the entire

150 acres described in the metes and bounds description to Schell,

notwithstanding "his probable intent to convey only ten acres." He also found

the deed, recorded in 1910 in Burlington County, almost twenty years after

Little Egg Harbor was made part of Ocean County, "was sufficient to provide

A-2823-16 71 notice of all subsequent grantees," and that "[t]o disregard the Schell deed

would [be] to work an injustice on the system." Although Phoenix could

locate no record of any further conveyance of any part of the 150 acres from

Schell, nor the record of his death nor any will, and Phoenix's genealogist

initially identified other individuals as heirs of Schell, the judge pronounced

himself satisfied "that Phoenix sufficiently proved chain of title through the

Schell heirs."

The judge also concluded the State's chain of title as to Property VII

"lacked sufficient probable evidence." The judge was not satisfied the State

had presented "sufficient proof" that "its grantors were, in fact, descendants of

the heirs of Herskowitz." The judge noted the evidence presented by the State

"relied on surnames and the recitals in the deeds." Although conceding such

would be "sufficient in many cases, this is not sufficient in the case given over

63 years of a gap between conveyances out of Wolf Herskowitz, who was, at

best, a remote grantor." The judge concluded "[t]his failure of proof is also

sufficient to call into question [the State's] chain of title."

The judge accordingly entered final judgment in Phoenix's favor as to

Properties IV (Block 3, Lot 18), V (Block 3, Lot 19) and VII (Block 4, Lot

13), declaring Phoenix the owner of fee simple title to those parcels, voided

A-2823-16 72 the State's deeds and ejected it from the premises. The judge thereafter entered

default judgment as to those defendants in the caption who failed to appear in

the action and dismissed without prejudice Phoenix's claims against its title

insurer, thereby rendering the matter ripe for appeal. The parties entered into a

consent order staying the judgment pending a final decision by this court or the

Supreme Court. This appeal followed.

The Parties' Arguments on Appeal

On appeal, the State renews the arguments it made to the trial court that

Phoenix's campaign to undermine the State's recorded deeds to these

"ecologically rare and irreplaceable lands" by exploiting defects in its chains

of title discovered by going back to the original grants from the Council of

Proprietors and searching forward, ignoring assessed owners and decades-old

tax sale judgments and instead taking omnibus quitclaim deeds from the living

heirs of long-dead record owners, surreptitiously wiping the State off the

municipal tax map in the process, constitutes heir hunting, exceeds all bounds

of reasonable commercial practice and is void as against public policy under

well-established law. Phoenix counters that as the trial court found, the State

"advocates for a 'policy' that its public objectives relieve it of proving that it

purchased the properties from the true owners."

A-2823-16 73 The State responds by asserting the trial court accepted Phoenix's

mischaracterization of the State's argument. It claims it is not seeking "some

kind of special status for public policy reasons," as the trial court found, "but

instead asks the court to examine whether Phoenix's attempt to usurp [the

State's] title is permissible given past precedent and potential future

consequences." Phoenix counters, arguing the prohibition against heir hunting

"only applies in the context of tax foreclosures where a third-party investor

buys an interest in the property after the foreclosure is filed for nominal

consideration."

Although we agree that Phoenix's actions here do not fit neatly into the

category of heir hunting, because it did not deceive the heirs from whom it

took quitclaim deeds and paid them, in most instances, more than nominal

consideration, we have no hesitation in holding its conduct was

unconscionable and clearly violated public policy, thereby barring it from any

remedy in a court of equity. See Bron, 42 N.J. at 95.

Our Analysis

We begin our analysis by noting our agreement with Judge Buczynski's

assessment that neither the Legislature nor "the chancellors who have ruled in

A-2823-16 74 the past could have quite contemplated the evolution of a case" like this one.

Phoenix's assault on the State's title here is nothing short of extraordinary.

Fully aware of the State's properly recorded deeds and not having any interest

of its own in any of the State's seven parcels, Denise and Phoenix spent the

better part of two decades and over $1 million to undermine the State's titles

based on the theory of its searcher, Gene Sharkey, "that it was his job to cut

through" the established record titles "as he believed everybody was directed

by Hyland v. Kirkman and get to the paramount owner and acquire title

through the paramount."

After "years and years" of searching "[a]ll 8,000 acres" of the Isaiah

Adams tract including its "26 or something exceptions" as well as the still

earlier Cranmer tract, under the banner that "[t]he paramount chain ruled,"

Denise claimed Sharkey "was first to cross the post in New Jersey." As Denise

explained Sharkey's philosophy: "You had the paramount chain and you were

the first to file, you own the property."

Sharkey died before he could be deposed in this case. Neither of the title

experts who appeared for the parties did any searching of these titles. Both

merely reviewed the work Sharkey performed, undertaking only isolated

research tasks in advance of trial. Accordingly, there is nothing in the record

A-2823-16 75 detailing Sharkey's laborious efforts and no way to learn what deeds and other

muniments of title he reviewed, or rejected, in determining what he claimed to

be "the paramount chain" to each of these parcels. It is, however, obvious that

his was not the "reasonable search" contemplated by the recording act. See

Palamarg, 80 N.J. at 456 (explaining the recording statutes have been

"consistently interpreted to mean" a "subsequent purchaser will be bound only

by those instruments which can be discovered by a 'reasonable' search of the

particular chain of title"); Glorieux v. Lighthipe, 88 N.J.L. 199, 203 (E. & A.

1915) ("A purchaser may well be held bound to examine or neglect at his peril,

the record of the conveyances under which he claims, but it would impose an

intolerable burden to compel him to examine all conveyances made by every

one in his chain of title.").

Armed with what Sharkey deemed the "paramount" title for each of the

State's parcels, Denise and Phoenix deployed their self-trained genealogist to

hunt down the heirs. Only those families who had been involved in prior title

disputes in the Pinelands, the Eichbaum and Cox clan and the Kudras, had any

idea they may have inherited an interest in these lands. In negotiating the

purchase of those interests, Phoenix's lawyer testified at deposition he couldn't

recall whether he mentioned to any of the heirs that the titles to these lands

A-2823-16 76 were then in the State, which had purchased them with federal and State funds

for the purpose of preserving them intact for future generations.

Omnibus quitclaim deeds in hand, Denise and Phoenix recorded them in

derogation of the State's record title. Then in the most astonishing move, they

presented the tax assessor of Little Egg Harbor with their new deeds and

searches, without any notice to the State, and asked that the tax bills be sent to

them.

The tax assessor, without any idea of whether the deeds were valid but

knowing the properties would "becom[e] taxable," made Denise the assessed

owner of each of the State's seven Properties on the Township's assessment list

and removed the legend "exempt – NJDEP" from each of the parcels on the

Little Egg Harbor tax map. Indeed, because Denise at that time staked his title

to Properties IV and V on tax sale certificates issued by Bass River and had

taken quitclaim deeds to Property VII from the wrong heirs, he had himself

made the assessed owner of three of the State's seven Properties with no

colorable claim of title at all.

Phoenix then took its final steps to annex the State's lands, without filing

a complaint in any court and without any notice to the State whatsoever.

Telling its surveyor, Schweppenheiser, to ignore the interior borders of the

A-2823-16 77 State's parcels because it was "buying all those properties," Phoenix had him

survey the outbound boundaries of the State's seven Properties and create a

new survey map showing all but two of them as simply part of the same parcel

as Phoenix's sand mine. Consolidating the State's parcels with its own in a

deed designed for the purpose and armed with Schweppenheiser's new survey,

Phoenix applied to Little Egg Harbor for a new lot and block designation. In

2005, Little Egg Harbor revised its tax map to erase the State's separate

parcels, incorporating them into a new Block 3, Lot 9.01, assessed to Phoenix.

When the State deposed Schweppenheiser, it asked whether he would

"have needed to denote that there was a potential discrepancy of ownership

with some of those lots," had Phoenix advised him it had acquired hostile

interests in the State's parcels without the State's knowledge and was surveying

the outbound for a lot consolidation in anticipation of a quiet title action

against the State. Although posed as a hypothetical, Phoenix does not dispute

the question was an accurate reflection of the true state of affairs when it

engaged Schweppenheiser to prepare the new survey. Schweppenheiser's

answer: "The way you put it, it would sound like fraud, I probably wouldn't do

the survey under those conditions."

A-2823-16 78 There is, of course, a very good reason such a scheme "would sound like

fraud." As the State's expert surveyor, Barry Jones, testified in explaining why

he also would not have performed the survey under those conditions, "You

can't combine lands that are owned by two different entities. It has to be the

same common owner . . . to combine them."

Although long quoted, the equitable maxim that "[a] suitor in equity

must come into court with clean hands," A. Hollander & Son, Inc. v. Imperial

Fur Blending Corp., 2 N.J. 235, 246 (1949), is no quaint artifact of an earlier

time. It remains "a self-imposed ordinance that closes the doors of a court of

equity to one tainted with inequitableness or bad faith relative to the matter in

which he seeks relief." Precision Instrument Mfg. Co. v. Auto. Maint. Mach.

Co., 324 U.S. 806, 814 (1945); Borough of Princeton v. Bd. of Chosen

Freeholders of Mercer, 169 N.J. 135, 158 (2001).

"[W]hile 'equity does not demand that its suitors shall have led

blameless lives,' . . . it does require that they shall have acted fairly and

without fraud or deceit as to the controversy in issue." Precision Instrument,

324 U.S. at 814-15 (quoting Loughran v. Loughran, 292 U.S. 216, 229 (1934)).

The misconduct justifying invocation of the doctrine need not be punishable as

a crime or such as would "justify legal proceedings of any character. Any

A-2823-16 79 willful act concerning the cause of action which rightfully can be said to

transgress equitable standards of conduct is sufficient cause for the invocation

of the maxim by the chancellor," id. at 815, or an appellate court, Trautwein v.

Bozzo, 39 N.J. Super. 267, 268 (App. Div. 1956).

The maxim is based on public policy, Rasmussen v. Nielsen, 142 N.J.

Eq. 657, 661 (E. & A. 1948), and assumes greater significance when the

litigation concerns the public interest. "For if an equity court properly uses the

maxim to withhold its assistance in such a case it not only prevents a

wrongdoer from enjoying the fruits of his transgression but averts an injury to

the public." Precision Instrument, 324 U.S. at 815. Here, the paramount

public interest, even more than the protection of these ecologically sensitive

lands, the preservation of which long ago was declared a national priority, is

the stability of New Jersey's recording system.

The State argues Phoenix's "heir hunting" undermines that stability and

is against public policy. Phoenix denies it was heir hunting. It claims it was

simply "an adjacent owner of property looking to acquire more property for its

business." Phoenix further claims "[t]he prohibition against heir-hunting is not

some catch-all public policy doctrine" and "was never intended to protect 'a

competing claimant,' such as the [State], that seeks to divest the true owners of

A-2823-16 80 their title and constitutional rights." Phoenix claims it is the party upholding

the recording system by insisting that property be acquired from "the true

owners." We reject Phoenix's claims as without merit.

Chief Justice Weintraub attempted to capture the essence of public

policy, "the ultimate source of justice," in Bron. 42 N.J. at 93. Quoting an

Ohio Supreme Court opinion, Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co.

v. Kinney, 115 N.E. 505, 506 (Ohio 1916), he emphasized

[i]n substance, it may be said to be the community common sense and common conscience, extended and applied throughout the state to matters of public morals, public health, public safety, public welfare, and the like. It is that general and well-settled public opinion relating to man's plain, palpable duty to his fellow men, having due regard to all the circumstances of each particular relation and situation.

Sometimes such public policy is declared by Constitution; sometimes by statute; sometimes by judicial decision. More often, however, it abides only in the customs and conventions of the people — in their clear consciousness and conviction of what is naturally and inherently just and right between man and man.

Critically, the Chief Justice underscored that when a party's course of conduct

is "shocking to the average man's conception of justice, such course of conduct

must be held to be obviously contrary to public policy, even though such

A-2823-16 81 policy has never been so written in the bond, whether it be Constitution,

statute, or decree of court." Ibid.

Few of our citizens, even those having read Hyland v. Kirkman, would

likely believe their neighbor, who had the time and resources to search the land

titles forward from Berkeley and Carteret, could turn them out of their home

by procuring quitclaim deeds from the far-flung descendants of someone who

held record title to the property a hundred years ago and inveigling the local

tax assessor to redraw the tax map to erase the lot they lawfully purchased on

the claim the neighbor, who wished to expand his own backyard, had acquired

the property from "the true owners." We think most citizens of this State

would aptly view such possibility as ludicrous because so shockingly "not

right." Yet that is essentially what Denise and Phoenix did here in creating

their consolidated Lot 9.01 annexing the State's land to enlarge its sand and

gravel mine.

Because there is no marketable title statute 31 in New Jersey to protect a

record owner from the exploitation of old title defects in her chain by an

31 Marketable title acts, which exist in about twenty states, operate to invalidate latent title claims that have not been raised in a specified limitations period, typically thirty or forty years. See, e.g., Unif. Simplification of Land Transfers Act §§ 3-301 to 3-309 (1976), 14 U.L.A. 343, 385-92 (2005). "The

A-2823-16 82 adjacent owner such as Phoenix looking to annex its neighbor's land, the

tactics Phoenix employed here could be directed against any landowner

anywhere in the State. 32 It is worth noting the lands here involved marketable

titles deemed insurable by reputable title insurers. Although the State was

represented by one of its title insurers at the outset of the litigation, that

company eventually withdrew, discharging its obligation to defend the State's

title by paying it the face amount of the policies. Title insurance could thus

prove cold comfort to a landowner faced with an assault on its title of the type

Phoenix unleashed. Title insurers could decide the better business decision

would be to pay the policies than incur the costs of experts and lengthy

litigation. And landowners lacking the State's resources could hardly be

purpose is to permit reliance upon the record chain where it is completely linked for the statutory period and, thus to render harmless defects which may exist prior to its commencement." Hyland, 204 N.J. Super. at 366. By making very old claims based on record title unenforceable, these statutes "contribute toward elimination of some undeserving claims and reduce some of the avoidable risks — such as stale claims resulting in windfalls — involved with land records." Charles Szypszak, Real Estate Records, The Captive Public, and Opportunities For The Public Good, 43 Gonz. L. Rev. 5, 24 (2007). 32 The risks, of course, are much greater in a remote area such as the Pinelands where the lands are largely undeveloped, making it more difficult to rely on obvious possession to thwart such attacks. See McGrath v. Norcross, 70 N.J. Eq. 364, 371 (Ch. 1905) (noting actual possession of the land by another will defeat the presumption of possession in the plaintiff in a statutory ejectment or possession of lands action). A-2823-16 83 expected to endure the costs of this sort of litigation if their insurers elect not

to defend.

The point is that the threat to the stability of the recording system posed

by Phoenix's actions is real, not imagined, and not limited to land titles in the

Pinelands. The State engaged reputable title companies to insure good title to

each of the seven parcels and had each surveyed before purchasing. All the

purchases were by bargain and sale deed with covenants against grantor's acts

and title insurance was in place for all but Property I, for which Department

records reflect a title commitment but not a title policy. The State recorded its

deeds promptly after purchase. Yet none of those things deterred Phoenix or

spared the State from having its holdings wiped off the face of the municipal

tax map and having to defend this challenge to its title based on hundred-year-

old deeds and an alleged historic mapping error.

New Jersey courts have long deplored the machinations of heir hunters

and title raiders, who seek "technical flaws in title in order to upset existing

equities and clearly vested rights." Palamarg, 159 N.J. Super. at 297. The

Supreme Court has deemed their "activities" to be of "no social value or

contribution" as they serve "only to further their own interests rather than the

A-2823-16 84 interests already on hand." O & Y, 120 N.J. at 458 (quoting Bron, 42 N.J. at

95).

The first reference to heir hunting in New Jersey was by Judge Jayne,

who described it as a "racket" in which unscrupulous agents reviewed probate

records for the purpose of "assisting" non-resident heirs in obtaining their

inheritances. Carey v. Thieme, 2 N.J. Super. 458, 464-65 (Ch. Div. 1949).

After the beneficiaries were advised of the efforts expended in the

investigation "and of their good fortune of which they would not have

otherwise learned. . . . [a]ppropriate powers of attorney were solicited to

enable the kind and gracious agent to collect" the heirs' share of the estate,

from which a stipulated fee, usually calculated on a percentage basis, would be

deducted for the services rendered. Id. at 465. Noting there was no "reported

decision in our State relative to the pursuit generally known as 'heir-hunting,'"

and careful to explain he was "not at present concerned with all patterns" of

such enterprise, "but only with the model of it exhibited" before him, Judge

Jayne declared the practice "inimical to the public policy of protecting

beneficiaries of estates from imposition and unnecessary expense." Id. at 466-

67.

A-2823-16 85 Our Supreme Court extended the concept of heir hunting beyond probate

proceedings in Bron. There, Woodbridge sold certain vacant lands for unpaid

taxes "and itself was the buyer" at the tax sale. Bron, 42 N.J. at 88. The

township then foreclosed the tax sale certificates, but unknowingly omitted the

last record owner when a searcher missed conveyances in the chain vesting

title in one Weintraub. Ibid. Twelve years later, Woodbridge sold the

property to a developer who built ten homes on the land. When one of those

homes was resold several years later, a title search revealed the failure to

foreclose Weintraub's interest. Id. at 89.

Woodbridge initiated a second tax foreclosure, N.J.S.A. 54:5-86.2, and

served notice by publication on Weintraub's unknown heirs to correct the

defect. Ibid. A third party, Hudson Trading Corporation, saw the published

notice, located Weintraub's two sisters in California, and wrote to them about

the property in a manner the Court deemed "palpably deceptive," and so

acquired their interests for $400. Id. at 90-91. Hudson then conveyed a

quarter interest to another third party, Frank Altomare, and the two redeemed

"[a]t the eleventh hour." Id. at 89.

In a subsequent quiet title action by the homeowners, consolidated with

Hudson and Altomare's suit for possession and mesne profits, the trial court

A-2823-16 86 ordered the homeowners to pay Hudson $19,555.11 to purchase the property

on which their houses stood, that being the value of the land without

improvements, plus mesne profits of $2,856.91. Ibid. We affirmed, declaring

that Hudson and Altomare having "seized upon the opportunity to make a

profit is not inherently inequitable merely because they may have known that

appellants lived on the land." Bron v. Weintraub, 79 N.J. Super. 106, 112

(App. Div. 1963). The Supreme Court reversed our opinion on public policy

grounds. Bron, 42 N.J. at 96.

Writing for the Court, Chief Justice Weintraub made clear

no one disputes the right of the holders of existing interests to convey them to third persons if they wish. What is challenged is the legality of the intrusion into the scene by third persons who seek only to further their own interests rather than the interests already on hand.

[Id. at 95.]

Acknowledging there was no precedent precisely on point, beyond "the

established hostility toward so-called 'heir-hunting'" expressed in Carey v.

Thieme, the Court had "no doubt the common conscience condemns the

conduct of Hudson and Altomare as an undue interference with the rights of

the householders." Id. at 96.

A-2823-16 87 The Court held that Hudson and Altomare having acquired the interest of

the Weintraub heirs "under 'circumstances which render it unconscientious for

the holder of the legal title to retain and enjoy the beneficial interest, equity

impresses a constructive trust on the property thus acquired in favor of the one

who is truly and equitably entitled to the same.'" Id. at 96 (quoting 4 Pomeroy,

Equity Jurisprudence § 1053 at 119 (5th ed. 1941)). The Court accordingly

ordered the heir hunters to convey the interest to the householders upon their

payment of $400, the same sum the heir hunters paid to acquire it, with simple

interest. Id. at 95-96.

Although Bron involved tax certificates, Phoenix is incorrect that the

public policy against heir hunting is limited to that context. Bron was a quiet

title action, not a tax foreclosure. Further, as already noted, Bron extended the

"established hostility toward so-called 'heir-hunting'" discussed in Carey v.

Thieme to quiet title actions and tax sales. Bron, 42 N.J. at 95; see also

Wattles v. Plotts, 120 N.J. 444, 445-46 (1990). Moreover, the Court has since

applied the policy in a quiet title case quite similar to this one to thwart "an

attempt by an heir hunter, . . . Continental Searchers, Inc. (Continental), to

upset title to property . . . owned by . . . O & Y Old Bridge Development Corp.

(O & Y)." O & Y, 120 N.J. at 455.

A-2823-16 88 O & Y acquired the property at issue in that case, an approximately

forty-four-acre parcel in Old Bridge, in four separate conveyances as part of a

much larger 2,600-acre tract it purchased for development. In the course of

searching title on a nearby property, Continental learned of a defect in O & Y's

title, specifically, an heir omitted from a quiet title proceeding conducted over

twenty-five years before. Id. at 457. "Sensing an opportunity, it offered to

'clear up the title' for O & Y." Ibid. Although O & Y had accepted a similar

offer from Continental on an earlier occasion when Continental had uncovered

another outstanding interest in the 2,600-acre tract, this time O & Y refused to

pay. Continental located the heir, acquiring his interest via a quitclaim deed in

exchange for $300 and the promise of an additional $2,700 in the event

Continental was successful in obtaining title. Ibid.

Continental and O & Y filed cross-complaints to quiet title to the

property. Relying on Bron, the Chancery Division determined Continental

lacked any protectible interest in the property, and thus entered final judgment

declaring "Continental had no interest in the property and that O & Y's title

was good." Id. at 456-57. We affirmed, finding "no valid distinction between

Bron and [O & Y] based upon the fact that the property in question is

undeveloped land rather than residential housing." Id. at 458. We also

A-2823-16 89 rejected Continental's argument, the same one made by Phoenix and accepted

by the trial court here, distinguishing Bron on the basis that O & Y was not "a

single homeowner" as the householders in that case. Ibid.

The Supreme Court, although noting the quiet title judgment obtained by

O & Y's predecessor in title would arguably be invulnerable to Continental's

attack twenty-six years later, did not decide the case on that basis as neither we

nor the trial court had addressed the issue. Id. at 457-58. Instead, the Court

reiterated its holding in Bron that our courts "find no social value or

contribution in the 'activities' of heir hunters or title raiders who 'seek only to

further their own interests rather than the interests already on hand.'" Id. at

458 (quoting Bron, 42 N.J. at 95).

Acknowledging that O & Y's predecessor's lawyer may have erred in

omitting to foreclose all interests in the prior quiet title action twenty-six years

before, the Court repeated what it said in Bron, that "'decent men must sense

only revulsion in this traffic in the misfortune of others.'" Ibid. (quoting Bron,

42 N.J. at 95). Although affirming our decision in favor of the record-title

owner O & Y, the Court modified the judgment to impose a constructive trust

on Continental's interest, on the basis that "[t]he most Continental can claim

under the Bron principles is the return of its meager investment in exchange

A-2823-16 90 for the 'title' it holds." Id. at 459. The Court accordingly held that "[a]ssuming

that the 1958 judgment did not extinguish the interest now asserted by

Continental, O & Y is equitably entitled to that interest on payment of $300

[the sum it paid the heir] plus simple interest." Ibid.

In addition to erroneously claiming the prohibition against heir hunting

is limited to tax sale proceedings, Phoenix also claims the Bron principles are

not controlling here because it paid the heirs more than nominal consideration

for their interests and acted to acquire the properties for the purpose of

expanding its sand and gravel operation, not to extort the State into purchasing

the interests. We reject both arguments.

Although the reported heir hunter cases have often, although not always,

see Wattles,33 120 N.J. at 447-48, involved nominal consideration paid to the

33 In Wattles, the plaintiff, Gordon Wattles, instituted an action to foreclose a tax-sale certificate on a six-acre parcel of vacant land adjacent to land his family owned in Hunterdon County. 120 N.J. at 446. After entry of default against "unknown owners," but before final judgment, "an heir hunter, National Asset Recovery (National), discovered out-of-state heirs of the last record owner, Edward Plotts." Ibid. National struck a deal with the Plotts heirs that if they "were successful in upsetting the tax foreclosure and in obtaining title, National could sell the property and divide the net profits with the heirs, after reimbursing itself for its expenses." Ibid.

The trial court permitted the heirs to redeem, and we affirmed, rejecting Wattles argument that Bron barred National's claim. Acknowledging Plotts'

A-2823-16 91 missing heirs, and the issue of nominal consideration has very great

significance in the tax sale cases, it is not the issue on which the quiet title

cases, such as Bron and O & Y, have turned. The reason for that is the public

policy concerns in tax foreclosure proceedings and quiet title matters, although

related, are distinct.

The tax sale cases actually present competing public policy

considerations. On the one hand is the need to encourage tax sale foreclosures

in order to assist municipalities in their efforts to collect delinquent real

property taxes. Varsolona v. Breen Cap. Servs. Corp., 180 N.J. 605, 618

right to redeem under the tax sale law, we "saw 'no reason why the heir of such an owner should be barred from his or her right of redemption simply because their right to redeem was brought to their attention by an heir hunter and they entered into a generous agreement with the heir hunter . . . .'" Id. at 449 (quoting our opinion at 230 N.J. Super. 254, 260 (App. Div. 1989)).

The Supreme Court agreed the heirs could redeem, but imposed a constructive trust in favor of Wattles on National's interest in accordance with Bron. Ibid. Acknowledging that the Plotts heirs stood to gain much more than the nominal sum paid to the Weintraub heirs in Bron, given that the property on which Wattles held the tax sale certificate had been assessed at $162,000, the Court determined that neither that fact nor "the intervening equities, such as were presented by the homeowners in Bron, should make a difference." Id. at 453. Instead, it reasoned that "[f]or all practical purposes, National [was] in the same posture as the heir hunters in Bron. It has insinuated itself into the scene for the sole purpose of furthering its own pecuniary interests." Ibid. Characterizing the case as simply "present[ing] a variation on the Bron theme," the Court determined imposition of a constructive trust on National's interest in favor of Wattles was the appropriate remedy. Id. at 445-46. A-2823-16 92 (2004). On the other is the need "to protect property owners from the

devastating consequences of foreclosure." Cronecker, 189 N.J. at 315. The

tax sale law, post Bron,34 accommodates both concerns by barring third-party

investors from redeeming a tax sale certificate "at the eleventh hour" by paying

the desperate owner "nominal consideration." N.J.S.A. 54:5-89.1. Allowing

third parties to meddle in tax foreclosures in that way would discourage

investors from buying tax sale certificates with no corresponding benefit to the

landowner. See Wattles, 120 N.J. at 451.

The Court, however, has declined to permit tax sale certificate buyers to

invoke the hostility our courts have shown to "heir hunters" and

34 As Justice Pollock explained in Wattles, the Legislature amended the tax sales law immediately after Bron to permit the owner of a single-family residence whose title derives from a defective tax foreclosure, such as the householders in Bron, to obtain the outstanding interest of a previously- unknown owner and thus avoid the interference of intermeddlers of the likes of Hudson and Altomare. N.J.S.A. 54:5-104.100 to -104.103; Wattles, 120 N.J. at 450. A subsequent amendment to N.J.S.A. 54:5-89.1, preventing a third party from intervening in a tax foreclosure or redeeming the certificate if that person acquired her interest in the property after the filing of a foreclosure complaint for a nominal consideration, was made three years later in response to an unpublished decision of this court attempting to limit Bron to its facts. Wattles, 120 N.J. at 450; Walter, 191 N.J. Super. at 369 (explaining same). As the Wattles Court held, nothing in that amended "statute, however, undercuts Bron." 120 N.J. at 452. A-2823-16 93 "intermeddlers" by treating all third-party investors as such. 35 Cronecker, 189

N.J. at 326-28. Third-party investors in tax sale proceedings who provide real

value to property owners facing foreclosure assist "property owners in

desperate need of financial assistance" without unduly interfering with the

expected returns of those commercial investors who buy tax sale certificates.

Id. at 328.

The Court in Cronecker recognized that investors in tax sales, whether

they be the buyer of the certificate or the intervenor attempting to purchase the

property or finance its redemption, are simply "commercial competitors," who,

looking out for their own self-interests in order to maximize their profits,

happen to "make possible the achievement of socially desirable objectives."

Id. at 330. So long as these investors "comply with the dictates of the Tax Sale

Law," the Court has declared itself "loath to intervene in the self-regulating

35 Indeed the Court in Cronecker limited Wattles, "[t]o the extent [it] suggests a violation of public policy when a third-party investor offers more than nominal consideration for the property interest of an owner facing [tax] foreclosure," while still holding an investor who contracts with a defendant to purchase the property and redeem the tax certificate without prior court approval will not be permitted to profit from the transaction, regardless of the sum offered the owner. Cronecker, 189 N.J. at 328, 338. That clarification does not limit the vitality of Wattles in this case, which does not involve a tax foreclosure but instead a scheme by a stranger to the title to purchase hostile interests in his neighbor's property in order to wrest the title from him and annex his lands. A-2823-16 94 forces of the marketplace, particularly when competition will result in

protecting a property owner's interest from forfeiture." Ibid. The Court in

Cronecker accordingly refused to apply the Bron principles to bar intervention

by third-party investors providing the property owner more than nominal value

as permitted by statute, specifically N.J.S.A. 54:5-89.1. Ibid.; see also Rando,

189 N.J. at 344; FWDSL & Assocs., LP v. Berezansky, 452 N.J. Super. 408,

410 (App. Div. 2017).

This case, of course, is not a tax sale proceeding, and the heirs from

whom Phoenix acquired quitclaim deeds were not desperate property owners

facing tax foreclosure. Most, like the Orlov heirs, had no idea their remote

ancestor had ever held title to one of the State's seven Properties. Although

Phoenix casts itself and the State as "competing claimants," nothing could be

further from the truth. The State was not competing with Phoenix to obtain

title to these Properties as the buyers of tax sale certificates compete with

third-party investors. The State owned these Properties; it already had title.

Like the householders in Bron and the developer in O & Y, the State

purchased these seven Properties "in the bona fide belief that title was good,"

Bron, 42 N.J. at 90, and like them was forced to defend a challenge to its title,

not by the heirs of some former record owner, but by an interloper who

A-2823-16 95 acquired the heirs' interests in the hope of attacking the record owner's title by

capitalizing on a defect in the record owner's chain. The Bron Court

condemned that conduct "as an undue interference with the rights of the

householders." Id. at 96. As Chief Justice Weintraub explained, "no one

disputes the right of the holders of existing interests to convey them to third

persons if they wish." Id. at 95. "What is challenged is the legality of the

intrusion into the scene by third persons who seek only to further their own

interests rather than the interests already on hand." Ibid.

The "interests already on hand" in this context are those of the fee owner

who purchased the land believing its title was good and that of the heirs of the

former record owner whose interest has resulted in the alleged defect in the

current record owner's chain of title. Those heirs, who often are not aware of

the property and sometimes are not even aware of the ancestor, are obviously

not similarly situated to "a property owner who has not redeemed a tax

certificate by the time a foreclosure action has commenced" and is thus likely

"vulnerable to the manipulation of overbearing speculators." Cronecker, 189

N.J. at 320; see also Wattles, 120 N.J. at 446-47.

Likewise, the record title holders are not similarly situated to the

"commercial investors," who purchase tax sale certificates in the general

A-2823-16 96 pursuit of "large profits upon small investments and who may fairly be treated

as acting at their peril." Id. at 330 (quoting Dvorkin v. Twp. of Dover, 29 N.J.

303, 324 (1959) (Jacob, J., dissenting)).

The public policy at issue in quiet title cases such as Bron and O & Y is

the avoidance of undue interference with the rights of the record title holders,

that is, the householders in Bron and the developer in O & Y, by strangers to

the title. There is no competing public policy interest of encouraging tax sales

at stake, no statute barring third persons from acquiring the interests of owners

facing foreclosure for nominal consideration, and no "self-regulating forces of

the marketplace," ibid., with which our courts are loath to interfere as exist in

tax foreclosures. Thus, that Phoenix may have paid some of the heirs more

than nominal value for their interests does not bear on the central issue of

whether it unduly interfered with the rights of the State as a record title holder.

There is no disputing that Phoenix, a stranger to the title having no

interest of its own in any of these seven Properties, sought out "technical

flaws" in the State's title "in order to upset existing equities and clearly vested

rights." Palamarg, 159 N.J. Super. at 297. Like the heir hunters in Bron

and O & Y, Phoenix sought to capitalize on alleged defects in the State's

record chain of title in order to interfere with the State's ownership for the

A-2823-16 97 purpose of furthering Phoenix's own ends, namely to acquire the land adjacent

to its sand mine, which it knew the State would not sell. Only unlike the heir

hunters in those cases, who acted opportunistically, Phoenix planned its assault

on the State's title, surreptitiously working to have itself substituted as the

assessed owner of the State's lands on the municipal tax rolls and to have the

State's holdings subsumed into its own on the tax map.

Because Phoenix researched the State's titles, ignored its recorded deeds

and surreptitiously acquired hostile interests from the heirs of long-dead record

owners for its own purpose of undermining the State's title, thereby interfering

with the State's vested rights to these seven Properties, its conduct is aptly

characterized as heir hunting or title raiding, without regard to the amounts it

paid the heirs to acquire those interests. We accordingly reject its argument

that the Bron principles are not controlling here because it paid the heirs more

than nominal consideration for their interests. Cf. Cronecker, 189 N.J. at 328

(noting that the interest acquired by a third-party investor after the filing of a

tax foreclosure complaint who fails to intervene in the action could be

impressed with a constructive trust without regard to whether he paid more

than nominal value for the interest); Wattles, 120 N.J. at 454-55 (imposing a

constructive trust on heir hunter's right to fifty percent net profits under

A-2823-16 98 contract with heirs entered into after the filing of a tax foreclosure complaint

without intervention in the cause under N.J.S.A. 54:5-89.1).

We also find it of no moment that Phoenix acquired those interests for

the purpose of expanding its sand and gravel operation instead of for

opportunistic resale to the owner as the heir hunters in Bron and O & Y. The

salient point is that Phoenix, like the heir hunters in those cases, interfered

with the rights of the record title owner for its own pecuniary interests,

ignoring "the interests already on hand." See Bron, 42 N.J. at 95. Whether

that pecuniary interest is secured by re-selling the property to the highest

bidder or sand mining is to us beside the point. That Phoenix sought to annex

the State's lands instead of selling them back to the State for a profit might

make it more aptly characterized as a title raider than an heir hunter but is

otherwise irrelevant to the inquiry. The effect on the record title holder by the

"undue interference" with its rights in either instance is the same.36

36 We also reject, as without merit, Phoenix's claim that the State seeks to "effectively endorse a policy that divests heirs of their right to sell their own property." As Chief Justice Weintraub made clear in Bron, "no one disputes the right of the holders of existing interests to convey them to third persons if they wish." 42 N.J. at 95. The issue "is the legality of the intrusion into the scene by third persons" looking to further their own interests and not that of the heirs or the record title owners. Ibid.; see also FWDSL & Assocs., 452 N.J. Super. at 413 n.4 (cautioning courts in tax sale matters not to be "swayed

A-2823-16 99 Likewise, we reject the trial court's finding that because Phoenix owned

property near the State's parcels it had "a bona fide interest," in becoming the

owner of the State's preserved lands, and thus its conduct "cannot be

characterized as exploitive," (quoting Walter, 191 N.J. Super. at 368). As

already noted, Phoenix's conduct in surreptitiously acquiring hostile interests

in the State's lands and convincing the tax assessor to drop the State from the

tax rolls, erase its parcels from the municipal tax map and redraw the map to

reflect Phoenix's annexation of the State's lands cannot fairly be characterized

as anything but exploitive. Further, Walter, another tax foreclosure case, is

inapposite and provides no support for Phoenix's conduct or the trial court's

findings.

In Walter, the plaintiff purchased a tax sale certificate on lot 21 in Egg

Harbor. 191 N.J. Super. at 365. Egg Harbor subsequently auctioned a

certificate for adjoining lot 22. Both lots were owned by the same person, who

had ceased paying the property taxes. The plaintiff bid at the sale for the

certificate on lot 22 but was outbid by Simon. Simon attempted to purchase

or distracted" by a litigant's "attempt to seize the moral high ground" by professing concern "about the municipality's collection of taxes or the prope rty owner's right to freely convey title" because "in reality, the contestants' interests in those matters are secondary at best to what they are truly after"). A-2823-16 100 the plaintiff's certificate on lot 21, but he refused to sell. Shortly before the

plaintiff filed suit to foreclose the certificate on lot 21, Simon located, in

Switzerland, an heir of the record owner of the lots and paid him $100 for his

1.25 percent interest. Ibid.

The trial court permitted Simon to intervene but denied her the right to

redeem the plaintiff's certificate because she paid only "nominal consideration

for the deed at a time when she knew plaintiff was about to commence

foreclosure." In the trial court's view, that was a violation of the spirit, if not

the letter, of N.J.S.A. 54:5-89.1, which forbids redemption by an unrelated

party who acquired its interest for nominal consideration after the filing of the

foreclosure complaint. Id. at 366. We reversed, finding Simon's offer to

redeem was "not barred by either the letter or the spirit of the statute." Id. at

367.

We found that regardless of whether Simon knew the plaintiff was about

to file his complaint, "she was not an intruder looking for a way to exploit the

work of others' by perusing the daily lis pendens filings," but instead was

simply another investor attempting, like the plaintiff, to acquire the title to

both lots. Ibid. When Simon's attempt to purchase the plaintiff's certificate

failed, she found a missing heir of the record owner of lots 21 and 22 and paid

A-2823-16 101 him "for his very small interest about what [the] plaintiff paid for the

certificate." Ibid.

We wrote in Walter that "Bron's pejorative references to 'heir-hunting'

and its potential for exploitation serve to alert a chancery judge to consider

exploitation, if it exists, as an overriding factor that would bar redemption in

this type of foreclosure suit." Id. at 368. We found Simon's conduct, however,

could in no wise be characterized as exploitive. Because Simon had complied

with the tax sale law and there were no "compelling equities such as those

present in Bron," we found she had as much a bona fide interest in obtaining

title to both lots 21 and 22 as the plaintiff, and there was no reason for the

judiciary to intervene in the competition between them.

Walter obviously provides no support for the trial judge's finding that

Phoenix had a bona fide interest in becoming the owner of the State's lands and

that its conduct toward the State could not be considered exploitive because

Phoenix was "an adjoining property owner." Walter is a tax sale foreclosure

case; the plaintiff and Simon were not "adjoining property owner[s]." They

were competing investors who purchased tax sale certificates on adjoining lots

owned by the same delinquent taxpayer, with each trying to become the owner

of both. We held Simon had a bona fide interest in becoming the owner of lot

A-2823-16 102 21, not because she "was an adjoining property owner," but because she was a

commercial competitor of the plaintiff's, pursuing lawful ends by legitimate

means.37 Phoenix's conduct in this matter bears no resemblance to Simon's in

Walter and that case provides no support for Phoenix's annexation of the

State's lands.

Simply stated, the trial court was led into error by Phoenix's invocation

of tax foreclosure concepts, inapplicable here, to excuse its nefarious conduct

in working to undermine an adjoining landowner's title to its lands in order to

annex that neighbor's property. Those inapposite arguments were intended to

obscure what is otherwise clear — that Denise and Phoenix were legal

strangers to the title having no interest in any of the State's seven parcels, who

37 We do not mean to suggest by this discussion that the Bron principles do not apply in tax foreclosures. They certainly can, as demonstrated in Wattles, 120 N.J. at 452-54, and reiterated in Walter, 191 N.J. Super. at 368-69. Our point is only that this case was not a contested tax foreclosure. The law of tax titles, on which the trial court relied, involves two contestants, the tax sale certificate holder and the intervenor, FWDSL & Assocs., 452 N.J. Super. at 413 n.4, "one claiming to advance society's interest in collecting taxes from tax-dormant properties and the other claiming to champion the right of owners to freely sell their properties," whose competition in the self-interested pursuit of their own profits both benefits local governments by restoring a delinquent property to the tax rolls and, at the same time, "protect[s] a property owner's interest from forfeiture," Rando, 189 N.J. at 344 (quoting Cronecker, 189 N.J. at 330). It has nothing to do with Phoenix's attempted annexation of lands adjacent to its sand and gravel operation belonging to the State. A-2823-16 103 purchased the fractional interests of descendants of long dead former record

owners in the State's chains of title in the hopes of exploiting real or imagined

defects in those chains for the purpose of wresting title from the State.38

Denise and Phoenix's inequitable conduct in unduly interfering with the State's

right to its lands brings the case squarely within the Bron principles, adopted

to prevent such wrong-doers from profiting from their misdeeds. See Bron, 42

N.J. at 95-96.

As we have stressed throughout this opinion, Phoenix held no interest in

any of the State's seven Properties when it began its quest to undermine the

State's title for the purpose of annexing the State's lands. That the State had

properly recorded deeds to each of the seven parcels was no deterrent to

Denise and Phoenix based on the theory of their searcher, Sharkey, "that it was

his job to cut through" the established record titles "as he believed everybody

was directed by Hyland v. Kirkman and get to the paramount owner and

acquire title through the paramount." We thus turn to that case and its

implications for this one.

38 As noted in Bron, some states bar the types of purchases Denise and Phoenix made here in lands adversely held by another. 42 N.J. at 95 (citing 10 Am. Jur. Champerty and Maintenance § 18, p. 563 (1937)); see also 14 Am. Jur. 2d Champerty and Maintenance §§ 12, 13 (2021). A-2823-16 104 There are two chancery court opinions in Hyland written by two

different chancery judges seven years apart. The first opinion at 157 N.J.

Super. 565, written by Judge Wood, addresses the defendants' motion to

dismiss the complaint brought by the Attorney General and the Department of

Environmental Protection to "rectify a massive fraud upon the courts and land

recordation system of the State" by defendants purporting to have obtained

title to thousands of acres of land in the Pinelands. Hyland, 157 N.J. Super. at

570. Judge Wood described the action as "a challenge to the fraudulent misuse

of the system of recording titles to land and of the legal procedures designed to

assure the orderly transfer of such title." Id. at 578.

The defendants urged the court to dismiss the action on several different

grounds, including that the injuries alleged in the complaint, if any existed,

were only to the private interests of certain individuals and not to the public at

large. Id. at 574. They argued there was "no authority in the Attorney General

to protect persons involved in private real estate transactions from the

fraudulent acts of other private individuals." Id. at 574-75.

Judge Wood disagreed the complaint or the Attorney General's authority

could be viewed so narrowly. He explained that

[t]he complaint asserts that there has been use (or abuse) of the "recordation system" of this State, and

A-2823-16 105 further, that fraud has been perpetrated on the courts by these defendants to the end of perpetrating fraud upon citizens of the State and of appropriation unto themselves rights in real estate previously nonexistent and, in effect, manufactured out of the whole cloth. That such activity threatens the integrity of those institutions and tends to bring them into disrepute seems obvious. It seems to me equally obvious that the integrity of these institutions is of vital public importance, and that an action to protect them is well within the discretion of the Attorney General.

[Id. at 575.]

The second Hyland opinion at 204 N.J. Super. 345, which was written by

Judge Wells, details his findings following a fourteen-day trial. In that

opinion, Judge Wells explains the "ideas" of Paul Burgess, Sr., "one of the

most renowned 'title men' in South Jersey" and the President of Chelsea Title,

then one of the largest title insurers in that part of the State, "for acquiring title

to what he conceived to be 'abandoned' land in the Pine Barrens and

particularly to the Isaiah Adams tract." Id. at 354.

Burgess attempted to obtain title to the entire 4,662.89 acre Adams tract

through use of "a 'wild' or 'thin air' deed," that is "a written instrument, in the

form of a deed, acknowledged and recorded" but executed by the named

grantor knowing he "has absolutely no title of any kind to the premises

described therein." Id. at 357-58. Burgess accordingly directed one of his

A-2823-16 106 searchers, Richard Tuthill, to execute a deed in 1961 conveying the entire

Adams tract to the Pinelands Development Corporation, an entity controlled by

Burgess and Elwood Kirkman, a prominent Atlantic City lawyer and Chairman

of the Board of Chelsea Title. Id. at 355-58.

Tuthill acknowledged he never had any interest in the Adams tract. He

testified at trial that Burgess explained "that this was land that was lying for

years on the tax rolls" assessed to "unknown owners" and on which nobody

had paid taxes for "[p]erhaps a hundred years." Id. at 363. "So, it was a case

where a chain of title could be established by putting a deed on record." Id. at

364. Tuthill explained that the grantee would be assessed the taxes and "over a

period of time having paid hundreds, maybe thousands of dollars in taxes,

would have more interest than a party who a hundred years ago his great

grandfather had a deed. This made sense." Ibid.

Tuthill explained that "the chain of title then becoming established," the

grantee "would go before the courts [in a quiet title action] and have their

blessing. Everybody . . . with an interest would be notified, served properly.

They'd have their day in Court. If they wanted to come forth, they could do

so." Ibid.

A-2823-16 107 The Attorney General urged that the Tuthill deed be stricken as a fraud

on the recording system. Id. at 364. The defendants argued that wild deeds

were essentially harmless and had the legitimate purpose of restoring lands

assessed to "unknown owners" to the tax rolls in the name of someone willing

to pay the taxes. Ibid. Judge Wells agreed with the Attorney General, holding

that New Jersey having a "notice-race recordation system" on which the public

is entitled to rely, wild deeds "are an absolute anathema and their use should

stop for any and all purposes at once." Id. at 367.

Two chains of title emanated out of the Tuthill deed. One chain

consisting of the 3,400 acres of the southwest portion of the Adams tract, after

having been "sanitized" through quiet title and tax sale actions, ended in 2,200

acres being vested in Great Notch Development Corporation and 1,200 acres

being vested in Robert Kaufman. A second "unsanitized" chain for the

remaining 1,200 acres, including those lands conveyed to Meyer Beyer, ended

in K & D Land Trust.

Judge Wells declared the Tuthill deed, and the deeds given by his

grantee, Pinelands Development Corporation, re-conveying the property were

void and of no effect and had them stricken from the record. Id. at 369. The

judge also voided the subsequent quiet title and tax sale judgments in the

A-2823-16 108 "sanitized chain" because procured by the defendants through their knowing

use of the wild Tuthill deed. Id. at 369-76. Despite, however, "striking . . .

every single basis of title from under Great Notch," the judge concluded it was

a bona fide purchaser for value without notice and that its title could not be

disturbed. Id. at 377. The judge found Great Notch had no actual or

constructive knowledge of the fraud and that a reasonably diligent title search,

including an examination of the regularity of the tax sale proceedings, would

not have revealed it.

Judge Wells thus concluded that Great Notch was "entitled to rely on the

record," noting that holding "comports with the policy" of not disturbing titles

to real estate. Ibid.; see also Palamarg, 80 N.J. at 459. The judge similarly

ruled that Robert Kaufman, who acquired his 1,200 acres of land covered by

the Tuthill deed as a result of a settlement with Burgess and Kirkman, was

likewise a bona fide purchaser for value without notice, and that his grantees

were also protected. Hyland, 204 N.J. Super. at 377-79. As to the

"unsanitized" chain, the judge stayed the pending action to quiet title to those

lands and deferred further rulings to that matter.

Although Great Notch and Kaufman were not divested of title, the judge

concluded that Burgess and Kirkman were unjustly enriched. Id. at 381.

A-2823-16 109 Burgess was dead by the time Attorney General Hyland launched his

investigation into the use of wild deeds in the Pinelands thirteen years after the

Tuthill deed. Although Burgess's estate was a defendant in the case, the judge

concluded it would be inequitable to impose any remedial judgment on

Burgess's heirs in 1985. Ibid. Kirkman, however, was very much alive. The

judge imposed a constructive trust on the share of the proceeds Kirkman

garnered from the inequitable scheme for the benefit of any heirs robbed of

their interests and any other claimants to any part of the Adams tract and made

the fund available to defray the attorney's fees and costs incurred by the State

in bringing the action.

Hyland thus condemned the use of "wild deeds" to establish title to

unclaimed lands, voided quiet title and tax foreclosure judgments many years

after their entry based on the fraud on the court by the plaintiffs in those

actions and, notwithstanding those rulings, determined that bona fide

purchasers of the lands affected by such fraud could not be divested of title,

although prohibiting Kirkman from drawing a profit from the scheme. Id. at

377-79. The decision thus provides no support for the notion of "cut[ting]

through" the established record titles to "get to the paramount owner and

acquire title through the paramount."

A-2823-16 110 Indeed, mindful of the consistent direction of our Supreme Court that

judges are to decide questions of title "in the way that will best support and

maintain the integrity of the recording system," Palamarg, 80 N.J. at 453,

Judge Wells quite consciously determined to "impose[] the burden of [the]

judgment on those guilty of an abuse of the courts," thereby ensuring that

"equity will have been served and the broader implications for titles will be

limited." Hyland, 204 N.J. Super. at 372. Sharkey and Phoenix's

"understanding" of the lessons of Hyland turns the decision on its head.

Plotting and re-surveying the original grants from the Proprietors,

searching the titles forward from those grants, ignoring assessed owners and

decades'-old tax sale judgments in the process, and taking omnibus quitclaim

deeds from the living heirs of long-dead record owners in the hope of

establishing "a paramount chain" of title for the purpose of ousting the record

title holder in peaceful possession, as Phoenix did here, is simply anathema to

the settled laws of conveyancing. New Jersey does not subscribe to the theory

attributed to Sharkey and championed by Denise and Phoenix that the "first to

cross the post" with "the paramount chain own[s] the property." Hyland

certainly does not stand for that proposition, and Phoenix has not brought to

our attention any case that does.

A-2823-16 111 Again, we cannot stress enough that Phoenix possessed no interest

whatsoever in any of the State's seven Properties when it began its quest to

cloud and undermine the State's title for the purpose of annexing its lands.

This is not, as Phoenix urged and the trial court accepted, simply "a dispute

over paramount title" — as if the parties were arguing over ownership of the

land along their adjoining boundary traced to a common grantor.

Phoenix is an interloper, a stranger to the State's titles, who launched an

unprecedented attack on the State's ownership of its lands based on a novel

theory born, apparently, from a misapprehension of the holding in Hyland.

The theory is that one can simply acquire another's land by starting with the

Proprietors and searching forward for old deeds the recording system has

forgotten, or, as likely, a prior generation of searchers, lawyers and title

insurers determined were no threat to the chain,39 take quitclaim deeds from far

flung heirs and declare oneself to have the "paramount title" by virtue of

having acquired the property from "the heirs of the last true owners."

39 This from an 1882 edition of the New Jersey Law Journal: "[u]p to this time our searchers have been preserved from many a mistake by the general acquaintance that the people had with the state of each other's titles. In the future, with the growth of the state, this cannot be looked for." Record Title to Land, 5 N.J.L.J. 260, 262 (1882) (quoted in Donald B. Jones, The New Jersey Recording Act — A Study of its Policy, 12 Rutgers L. Rev. 328, 340 (1957)). A-2823-16 112 Permitting an attack like this one by a complete stranger to title would

make it impossible for any property owner anywhere "to purchase and hold

title to lands within the State with confidence." Palamarg, 80 N.J. at 453

(quoting Jones, 12 Rutgers L. Rev. at 329-30). It has long been the law that

titles do not have to be perfect to be marketable. La Salle v. La Pointe, 14 N.J.

476, 479-81 (1954). As the Court explained in Conklin v. Davi, quoting

Justice Cardozo, then Chief Judge of the New York Court of Appeals , writing

in an action by a purchaser to cancel a sales contract on the ground the seller

could not convey marketable title, "[t]he law assures to a buyer a title free

from reasonable doubt, but not from every doubt. . . . If 'the only defect in the

title' is 'a very remote and improbable contingency,' a 'slender possibility only,'

a conveyance will be decreed." 76 N.J. 468, 473 (1978) (quoting Norwegian

Evangelical Free Church v. Milhauser, 169 N.E. 134, 135 (N.Y. 1929)).

If title can be acquired by an interloper with the time and money to

search the grants from the Proprietors for defects based on such "very remote

and improbable contingencies," no landowner could ever be sure his title was

safe. See La Salle, 14 N.J. at 480 (quoting Tillotson v. Gesner, 33 N.J. Eq. 313,

327 (E. & A. 1880) (noting a "purchaser should have a title which shall enable

him not only to hold his land, but to hold it in peace; and if he wishes to sell it,

A-2823-16 113 to be reasonably sure that no flaw or doubt will come up to disturb its

marketable value")). Certainly a sixty-year title search, long customary in

New Jersey, see Palamarg, 80 N.J. at 460, would not be nearly long enough to

account for all remote and improbable contingencies lurking in the record title

from the original grants from the Proprietors. It is worth remembering in this

regard that the deeds on which Phoenix relied to establish its "paramount" title

were all over one hundred years old or nearly so, often recorded in the wrong

county, and that most of the descendants of those long-dead record title

holders from whom Denise took quitclaim deeds were not aware they

possessed any putative interest in the lands at issue.

Our Supreme Court has provided clear direction in pronouncing that

"[g]enerally speaking, and absent any unusual equity, a court should decide a

question of title such as this in the way that will best support and maintain the

integrity of the recording system." Ibid. Allowing this unprecedented third-

party attack by a stranger to the State's title would, in our view, destabilize

marketable titles in the Pinelands and elsewhere and undermine the integrity of

the recording system by exposing record title holders to unreasonable litigation

risk, and possible ouster, based on remote and improbable claims not fairly

anticipated or easily defended.

A-2823-16 114 Phoenix's claim that it is upholding the recording system by insisting

that title be acquired from the "true owners" is nothing more than doublespeak.

Phoenix is a title raider whose unconscionable conduct in attempting to annex

the State's lands should have barred it from the equitable relief it needed from

the chancery court to consummate its scheme. That the reported heir hunting

cases do not provide "precedent precisely in point" is no barrier to our

declaring Phoenix's actions against the public policy embodied in the State's

recording laws. See Bron, 42 N.J. at 95. Bron and O & Y provide clear

guidance here. And, as Chief Justice Weintraub noted in Bron, "public policy

is more than a mere summation of its past applications. . . . 'Its virtue and vigor

lies in its flexibility of application, and while reported cases furnish guides ,

they rarely are compelling in precedent.'" 42 N.J. at 95 (quoting Fidelity

Union Trust Co. v. Reeves, 96 N.J. Eq. 490, 493 (Ch. 1924), aff'd o.b., 98 N.J.

Eq. 412 (E. & A. 1925)).

The Court has instructed that "[i]n the exercise of their common-law

jurisdiction, courts should seek to effectuate sound public policy and mold the

law to embody the societal values that are exemplified by such public policy."

Carr v. Carr, 120 N.J. 336, 350 (1990). Declaring Phoenix a title raider, or

simply a new species of heir hunter, and its unprecedented attack on the State's

A-2823-16 115 title a threat to the stability of the recording system without any "social value

or contribution" fulfills that mandate. See Bron, 42 N.J. at 95. Withholding

equitable relief to Phoenix based on its unclean hands in unduly interfering

with the State's rights to these seven parcels in the Preservation Area "not only

prevents a wrongdoer from enjoying the fruits of his transgression but averts

an injury to the public," Precision Instrument, 324 U.S. at 815, by

"support[ting] and maintain[ing] the integrity of the recording system,"

Palamarg, 80 N.J. at 453.

Having declared Phoenix's attempted annexation of the State's lands as

violative of public policy, we turn to the issue of remedy. To the extent that

Phoenix has acquired "title" to any of the State's seven parcels, we have no

doubt it acquired it under "circumstances which render it unconscientious for

the holder of the legal title to retain and enjoy the beneficial interest." Bron,

42 N.J. at 96 (quoting Pomeroy, § 1053 at 119). Thus, imposition of a

constructive trust is the appropriate remedy. See id. at 95-96 (noting "the

applicability of the concept of a constructive trust 'is limited only by the

inventiveness of men who find new ways to enrich themselves unjustly by

grasping what should not belong to them'") (quoting Latham v. Father Divine,

85 N.E.2d 168, 170 (N.Y. 1949)).

A-2823-16 116 Because the most Phoenix can claim under the Bron principles is the

return of what it paid the heirs for the "title" it acquired, we turn to consider

whether the trial court was correct in finding Phoenix sustained its burden in

establishing its quia timet and ejectment claims as to each of the State's seven

parcels.

The Law of Quia Timet and Ejectment

"[Q]uia timet is an equitable proceeding of ancient origin which permits

the plaintiff to take affirmative action to protect or perfect his title because he

fears [quia timet] the claim of the defendant may be injurious to him." 2

Lawrence J. Fineberg, Handbook of New Jersey Title Practice § 9705 at 97-3

(3d ed. 2003, rev. 2012); see also Fittichauer v. Metro. Fire Proofing Co., 70

N.J. Eq. 429, 430 (Ch. 1905) (discussing "suits in equity under the ancient

jurisdiction of the court of chancery classified as bills quia timet, or bills of

peace"). As the Court of Errors and Appeals explained, "in cases where an

instrument exists which, though really void, has an ostensible validity, and

which throws a doubt over the title to real estate, a court of equity will

interfere, and relieve against the injustice of such an illusion." Bogert v.

Elizabeth, 27 N.J. Eq. 568, 570 (E. & A. 1876).

A-2823-16 117 A quia timet proceeding is broader in scope than a statutory quiet title

action because possession, which Judge Buczynski determined Phoenix could

not claim notwithstanding its payment of taxes, "is not an essential." Estate of

Gilbert Smith v. Cohen, 123 N.J. Eq. 419, 424 (E. & A. 1938). What is

required, however, is that the claimant seeking "the cancellation of an

instrument . . . on the principle quia timet . . . must show a title to the relief

free from all reasonable doubt, and it must also appear that it is clearly against

conscience that the instrument should be permitted to remain uncanceled."

Shotwell, 24 N.J. Eq. at 387.

A claim for ejectment is similar in both aspects. The claim is typically

"brought by one out of possession of land against one who either is in

possession thereof or who makes claim thereto, if the land be vacant."

Funkhouser v. City of Newark, 182 F. Supp. 15, 17 (D.N.J. 1960) (citing Toth

v. Bigelow, 1 N.J. 399, 406 (1949)). Common law ejectment in New Jersey

has been replaced by a statutory remedy under N.J.S.A. 2A:35-1, entitling

"[a]ny person claiming the right of possession of real property in the

possession of another, or claiming title to such real property, . . . to have his

rights determined in an action in the Superior Court." See J & M Land Co. v.

First Union Nat'l Bank ex rel. Meyer, 166 N.J. 493, 520 (2001).

A-2823-16 118 It remains, however, that the plaintiff in ejectment "has the burden of

establishing his title, and if he fails to establish a good paper title the judgment

must go against him." Perlstein, 12 N.J. at 204. "[T]he plaintiff must recover

upon the strength of his own title, and . . . cannot rely upon the weakness of

that of his adversary." Troth v. Smith, 68 N.J.L. 36, 37 (Sup. Ct. 1902);

Brighton Constr., Inc. v. L & J Enters., Inc., 121 N.J. Super. 152, 163 (Ch.

Div. 1972). If the plaintiff "fails to support his own title, the defendant will

retain possession until he is ousted by someone who has a superior title."

Troth, 68 N.J.L. at 37.

We now apply those standards to the seven Properties at issue.

Property I (Block 2, Lot 11); Property II (Block 4, Lot 8); and Property III (Block 4, Lot 8A): the Bodine Tract

As previously noted, the State and Phoenix both trace their title to these

three properties to an 1835 conveyance from the West Jersey Council of

Proprietors to Gideon Cranmer, and from Cranmer's estate to James Bodine.

Both chains of title also include an 1860 deed from James and Cornelia C.

Bodine to Job Corlis encompassing the entire tract. The parties' chains of title

thereafter diverge. The next deeds in the State's chain are two 1914 deeds

from the heirs of Job Corlis to Frederick Vail, a/k/a Harry Davidoff, for the

entire tract. The next deed in Phoenix's chain, however, is a deed from Corlis

A-2823-16 119 and his wife, Eliza, back to Bodine, dated March 13, 1861, acknowledged

almost four months later on July 1, 1861, but not recorded until May 29, 1875,

over fourteen years after it was signed and a year after Bodine's death.

Phoenix's claim to Properties I, II and III rests on the validity of that deed and

its being discoverable by a subsequent purchaser conducting a reasonable

search of the record.40

40 Leaving aside Phoenix's bad faith in acquiring its fractional interests in the State's lands with knowledge of the State's recorded deeds and the surreptitious changes it worked to the tax map, which overarches all else in this case, we might otherwise expect this sort of title dispute to turn on what a reasonable title search would reveal about Phoenix's chains of title when the State purchased its Properties, see Palamarg, 80 N.J. at 456, and thus whether the State was a bona fide purchaser for value without notice, Venetsky v. W. Essex Bldg. Supply Co., 28 N.J. Super. 178, 187 (App. Div. 1953). This case does not turn on that point, for several reasons. Chief among them, as already noted, is that neither title expert testifying at trial actually searched these titles, and there was no testimony about the laborious efforts Sharkey undertook to uncover the deeds supporting Phoenix's chains. Second, the parties clashed repeatedly over the knowledge that should be imputed to the State by its involvement in prior Pinelands litigation, including Hyland. The State, after failing to convince the trial court it was a bona fide purchaser for value of the Bodine tract and Property VI on summary judgment, agreed it would not present evidence at trial on that issue as to the other Properties. The State has renewed its bona fide purchaser claims on appeal, to which Phoenix objects. As noted in the text, we do not think the issue could have been decided on summary judgment. Given this record and because we rest our decision on other grounds, we do not explore what a reasonable search would be, what it would have disclosed, and in the case of the Bodine tract, whether the State's correspondence with Ellie Eichbaum in 1988 would have put it on inquiry notice of the 1972 deed her father made to her and her brother — a claim to

A-2823-16 120 The trial court entered partial summary judgment to Phoenix on its quia

timet and ejectment claims as to Properties I, II and III, finding "no material

fact in dispute," despite the conflicting reports of the parties' title experts as to

what a reasonable search of the record at the time of the State's purchase of

these three Properties would have revealed. The judge deemed the State's

"primary argument [to be] that the 1861 deed is not valid since it was recorded

after Bodine's death which leaves the chain of title running through the heirs of

Corlis to Vail and eventually to [the State]." Whereas Phoenix contended "to

the contrary that so long as the Corlis signature on the 1861 deed was not a

forgery, the deed is valid." The judge agreed with Phoenix, finding "no

evidence of forgery, the deed was properly recorded and acknowledged, and is

presumed valid."

As already noted, Phoenix's failure to produce the original 1861 deed

from Job and Eliza Corlis precluded the court from considering the

genuineness of the grantors' signatures on the document, making the test

title she represented her family had abandoned fifteen years before, see Francis S. Philbrick, Limits of Record Search and Notice, 93 U. Pa. L. Rev. 125, 131 (1944) (noting "[i]n scores of cases courts have said that [the subsequent purchaser] was put upon inquiry, and that reasonable diligence would have led him to 'the facts,' when no possible inquiry could have led him to anything other than a difficult legal problem"). A-2823-16 121 proffered by Phoenix self-serving, at best. Further, the court appears to have

accepted Phoenix's argument that the 1861 deed was properly recorded without

reference to the law in effect at that time. Indeed, a review of the law

governing the recording of the document 145 years ago would suggest the trial

court's finding that the 1861 Corlis to Bodine deed was "properly recorded" is

in error.

An 1820 supplement to the Conveyancing Act of 1799 made every deed

executed after January 1, 1821,

void and of no effect against a subsequent judgment creditor or bona fide purchaser or mortgagee for a valuable consideration, not having notice thereof, unless such deed or conveyance shall be acknowledged or proved and recorded, or lodged for that purpose with the clerk of the court of common pleas of the county in which such lands, tenements and hereditaments are situated, within fifteen days after the time of signing, sealing and delivering the same; provided nevertheless, that such deed or conveyance shall, as between the parties and their heirs, be valid and operative.

[L. 1820, p. 141-42, § 1.]

The Court of Errors and Appeals explained the effect of a deed recorded

after fifteen days on a subsequent purchaser in Sanborn v. Adair, 29 N.J. Eq.

338 (E. & A. 1878). "By the terms of the act of June 5th, 1820, a deed not

recorded in fifteen days is made absolutely void as to one subsequently taken

A-2823-16 122 without notice; the single condition upon which it is to be postponed is a

failure to record it in fifteen days." Id. at 341. Reviewing amendments to the

1799 Registry Act, the court found that

as our law now stands, a deed not recorded in fifteen days loses its priority over one taken subsequently without notice. The statute fixes the status of the subsequent deed, and establishes its priority; priority cannot be regained by the earlier deed by being recorded before the subsequent deed is recorded. The law says that by failure to have it recorded in fifteen days, it shall be void and of no effect against the subsequent deed or judgment or mortgage, and in that position it must remain. The simple act of omission on the part of the grantee to have it recorded within fifteen days, is declared by the statute to make it void against such subsequent deed, judgment or mortgage. The failure to incorporate the second section of the act of 1801 into the act of 1820, manifests a clear intention to change the rule which permitted the earlier deed to retain its priority by getting upon record, after the expiration of fifteen days, before the recording of the later deed.

[Id. at 340-41.]

The 1861 Corlis deed was not recorded within fifteen days, but fourteen years

after its execution, presumably by Bodine's administrators who located it

among his papers after his death.

We do not suggest by our comments that the 1861 Corlis deed was either

forged or without priority over the 1914 deeds from the Corlis heirs to Vail

A-2823-16 123 when those deeds were recorded. Although the failure to record the 1861

Corlis deed within the fifteen days mandated by statute would have rendered it

void had the Corlises conveyed to a third party without notice, even after its

recording in 1875, per Sanborn, the 1820 Supplement to the Conveyancing Act

of 1799, by its terms, made the deed "valid and operative" as between the

parties to the deed and their heirs. Moreover, in 1883 the Legislature repealed

the fifteen-day rule of the 1820 Supplement and decreed that deeds previously

lawfully recorded, albeit more than fifteen days after execution, would be

deemed duly recorded and valid and operative against all but judgment

creditors, mortgagors and bona fide purchasers without notice whose deeds

were previously recorded or lodged with the clerk for recording. L. 1883, c.

169, § 3.

Instead, our discussion underscores that attempting to interpret and give

effect to deeds evidencing conveyances made over a hundred years ago is often

very difficult, involving unfamiliar laws and customs of conveyancing in a

world in which copy machines, global positioning systems and paved

highways were non-existent. The point is that it may not be enough for the

proponent of such an old deed seeking to upend a competing chain of title in

place for over one hundred years to simply rely on a presumption of validity of

A-2823-16 124 recording and the absence of any proof of forgery, particularly where the

proponent's burden is to establish his title "free from all reasonable doubt" and

that it appear "clearly against conscience that [his opponent's] instrument

should be permitted to remain uncanceled." Shotwell, 24 N.J. Eq. at 387.

The trial court, relying on that presumption of validity and absence of

proof of forgery, ruled for Phoenix reasoning that the Corlises, having

conveyed the property back to Bodine, "had nothing to convey" or leave to

their children, citing Meeks v. Bickford, 96 N.J. Eq. 321, 325 (E. & A. 1924). 41

Relying on the supposed genuineness of the signatures on the Corlis deed and

its proper recording, the trial court failed to consider what the record reflects

the Bodine and Corlis administrators and heirs understood about ownership of

41 Although the concept of a grantor not being able to convey more than he has is well-established, it is doubtful the case cited for the proposition, Meeks, remains good law. There, the Court refused to give priority to a quitclaim deed given by the grantor after she had conveyed the title to another, who failed to record his bargain and sale deed prior to recordation of the quitclaim deed. Meeks, 96 N.J. Eq. at 324. As subsequently explained by the Court in Baum v. Canter, 104 N.J. Eq. 224, 225 (E. & A. 1929), the rationale of Meeks "was that one who takes title in that manner [by quitclaim deed] is put on notice that he gets only the interest that the grantor at the time possesses, and that he cannot rely on the recording acts for his protection." Our Supreme Court in Palamarg, however, pledged allegiance to the modern rule that "a quitclaim deed passes the same estate to a grantee as does a deed of bargain and sale," 80 N.J. at 452, affording the grantee the same protections under the recording acts as one taking a bargain and sale deed. See N.J.S.A. 46:5-1 to -9. A-2823-16 125 the property. As the State's title expert, Joseph Grabas, pointed out, both

Bodine and Corlis died without wills, and the law of intestate succession at the

time made the intestate's children his primary heirs, subject to any rights of

dower or curtesy. See Statutes of the State of New Jersey, tit. X, ch. 2 §§ 1, 6

(1847); Bray v. Taylor, 36 N.J.L. 415, 418-21 (E. & A. 1872) (tracing the law

governing descent of lands). Looking at how matters stood a hundred to one-

hundred-and-fifty years ago, when these conveyances were within living

memory, it appears inescapable that the Bodine administrators and heirs

believed the Bodine tract was not within their power to convey and did not do

so, whereas the Corlis heirs believed they could convey it and did.

As the report of the State's title expert expounded, Bodine, identified as

a merchant, living in what is now Waretown, died intestate on March 8, 1874.

The estate was inventoried and subsequently declared insolvent the following

December. The 1861 Corlis to Bodine deed was recorded six months later in

May 1875. Five months after that, the administrators listed seventeen lots for

sale, including the Bodine homestead where his widow Cornelia lived, but did

not include the Bodine tract as an asset of the estate in the real property

inventory. Nor was the property included in a secondary report filed in

September 1879 when the administrators included two additional parcels as

A-2823-16 126 assets of the estate. Six years after Bodine's death, a Final Report of Claims,

Final Accounting and Decree of Distribution were filed closing the estate on

April 21, 1880, without the Bodine tract ever appearing. The property does

not appear among the assets of Cornelia Bodine at her death and was not

conveyed by any of their children. As Grabas noted, and is undisputed, there

was no purported transfer of the land by any of the heirs of Bodine until 1972,

ninety-seven years later, when C. Roy Cox, a purported heir, conveyed the

property to his children, Ellie Eichbaum and Benjamin S. Cox for no

consideration.

Job Corlis, identified as a farmer in national censuses from 1850 through

1880, died intestate in August 1892, leaving his wife Eliza and three children.

Eliza died five years later. No record of their estates has been discovered.

Grabas documented with reference to the 1872 Beers Atlas that the Bodine

tract in Warren Grove, then known as Corlisstown, was located close by Job

Corlis' homestead. The tax records for Little Egg Harbor from 1895, the

earliest date available, list Job Corlis; and from 1910 through 1917 he is

described as the assessed owner of 300 acres of woodland in Warren Grove.

Neither Bodine nor any of his heirs appears in the Little Egg Harbor tax

records as the assessed owner of the Bodine tract. In 1914, Corlis' surviving

A-2823-16 127 children, their spouses and the children of a deceased daughter conveyed

Properties I, II and III to Frederick Vail in two deeds, describing the

approximately 80-acre tract in the same manner as the prior deeds. All three

properties have been conveyed multiple times since, and there are tax sale

judgments, which appear regular on their face, in the chains of title to two of

Having reviewed those facts, none of which is disputed, we cannot

conclude that Phoenix carried its burden to establish its title to Properties I, II

and III "free from all reasonable doubt," or that conscience requires the

cancellation of the State's deeds. Shotwell, 24 N.J. Eq. at 387. Phoenix's title

expert, Erwin Apell, characterized the Corlis to Vail deeds, as "wild deeds,"

defined by Judge Wells in Hyland as "a written instrument, in the form of a

deed, acknowledged and recorded" but executed by the named grantor

knowing he "has absolutely no title of any kind to the premises described

therein." 204 N.J. Super. at 357-58. But Apell could point to nothing in the

record to suggest the Corlis heirs, all of whom were born, lived and died

within a mile of this tract, believed anything other than that they had lawfully

acquired the property on the death of their parents, and grandparents, and

could lawfully convey it to Vail.

A-2823-16 128 Indeed, it is precisely those circumstances — the discovery of the 1861

deed after Bodine's death, presumably by his administrators, who recorded it

during the probate of Bodine's estate, fourteen years after its making, yet did

not include the property in the final accounting of the claims and assets of his

insolvent estate and never conveyed it; the failure of Bodine's widow or any of

their four children, or their children, to convey it; and that it was conveyed by

the Corlis children more than fifteen years after the deaths of their parents, at a

time when three of Bodine's four children were still living — that raise doubt

as to the validity of the 1861 Corlis to Bodine deed.

Stated differently, simply too much time has passed to allow anyone to

say with confidence whether the 1861 deed from Corlis to Bodine was

effective to transfer the Bodine tract back to Bodine.

Whenever a deed or other instrument exists, which may be vexatiously or injuriously used against a party after the evidence to impeach or invalidate it is lost, . . . a court of equity will afford relief by directing the instrument to be delivered up and canceled, or by making any other decree which justice and the rights of the parties may require.

[Shotwell, 24 N.J. Eq. at 380 (quoting Martin v. Graves, 87 Mass. 601, 602 (1863)).]

"Great delay is a great bar in equity." Stout v. Ex'rs of Seabrook, 30 N.J. Eq.

187, 190 (Ch. 1878), aff'd, 32 N.J. Eq. 826 (E. & A. 1880). As Vice

A-2823-16 129 Chancellor Van Fleet explained, "[t]he reason of the rule is apparent, and

consists in the difficulty and, in many cases, the impossibility, of ascertaining,

after a great lapse of time, the facts necessary to enable the court to exercise its

power with safety." McCartin v. Adm'r of Traphagen, 43 N.J. Eq. 323, 338

(Ch. 1887), aff'd, 45 N.J. Eq. 265 (E. & A. 1889).

He who delays asserting his rights, until the proofs respecting the transaction, out of which he claims his rights arose, are so indeterminate and obscure, that it is impossible for the court to see, whether what seems to be justice to him is not injustice to his adversary, should be denied all relief, for, by his laches, he has deprived the court of the power of ascertaining, with reasonable certainty, what the truth is, and thus of doing justice.

The long delay by Denise and Phoenix and their predecessors in title in

asserting a claim to the Bodine tract bars relief against the State in quia timet.

They have waited, by design or otherwise, "until their delay had put them in

the best possible position and their adversary in the very worst." Id. at 339.

Relying only on the presumption of validity accorded a deed recorded 125

years ago, "[t]hey seek to turn their fault into an advantage." Ibid. Although

the circumstances surrounding the recording of that deed raise doubts as to its

validity, the "written matter . . . endures notwithstanding the flight of time,"

A-2823-16 130 ibid., while the only witnesses with the ability to explain the making of the

deed, the delay in recording it, the reason Bodine's administrators determined

it wasn't properly an asset of his insolvent estate, and his wife and children

abandoned it, while the Corlis heirs treated it as their own, have all long since

passed away. The long delay has simply deprived the court of the facts

necessary to determine the truth of the matter, and thus to safely exercise its

power to grant Phoenix the equitable relief it seeks.

Because Phoenix has not shown the title it acquired from the Bodine

heirs to be "free from all reasonable doubt," much less that conscience requires

the cancellation of the State's deeds under the circumstances, Shotwell, 24 N.J.

Eq. at 387, the legal and equitable title to Properties I, II and III remains in the

State, which has established the validity of its own unbroken title to those

lands.42 Accordingly, no payment is due Phoenix for the interests it acquired

from the Bodine heirs.

42 Because we determine Phoenix has not established its title to the Bodine tract free from all reasonable doubt, we need not address the State's alternative argument that it was a bona fide purchaser for value of Properties I, II and III. As already noted, Phoenix contends the State abandoned that claim, a point the State disputes. Because the record is less than clear on the issue and we have otherwise determined that Phoenix failed to prove its claim, we need not resolve their dispute on that point. A-2823-16 131 Property IV (Block 3, Lot 18) and Property V (Block 3, Lot 19)

Properties IV and V were originally part of the 4,662.89-acre tract

(8,525.80 acres less exceptions) the West Jersey Proprietors conveyed to Isaiah

Adams in 1859. More specifically, the parcel was part of the easterly

2,797.74-acre portion of the Adams tract conveyed to Meyer Beyer — in a

deed lacking a metes and bounds description — in 1894. The State and

Phoenix both trace their title to Meyer Beyer. The titles thereafter diverge.

The State traces its title to Property IV to an 1894 deed by Beyer and his

wife, Mathilda, to Sam and Paulina Halpern for a fifty-acre "corridor lot"

running along the easterly line of the Adams tract. The Halperns conveyed the

same land two months later to Annie and Harris Saperstein. In 1896, the

Sapersteins conveyed the property to Hyman Rosensohn, who conveyed

twenty-six acres to Bertha Boehm in 1897 by deed recorded in Burlington

County, subsequently recorded in Ocean County in 1970. Boehm, or her heirs,

apparently failed to pay taxes on the property, by then identified as Block 3,

Lot 18, which resulted in a tax sale foreclosure judgment in 1978 in favor of

Elizabeth Anne Merring and American National Bank and Trust, co-executors

of the Estate of Herbert L. Pickell. The State acquired Block 3, Lot 18 from

A-2823-16 132 Pickell's estate in 1994. The State's chain of title to Property V is identical to

that of its chain of title to Property VII, discussed infra.

Phoenix induced the Little Egg Harbor tax assessor to change the

assessed owner of Properties IV and V from the State to Phoenix, consolidated

those parcels with other lands belonging to Phoenix, and filed this action to

oust the State from possession of those properties based on a 2000 deed to

Denise from Robert Kaufman, individually and as trustee of K&D Land Trust.

As Phoenix's title expert, Apell, explained in his initial report in this action,

Phoenix's claim to Properties IV and V was based on the historic mapping

error its surveyor, Schweppenheiser, claims to have discovered whereby the

easterly line of Adams was actually east of where it was believed to have been,

thereby placing Properties IV and V not in the Beyer "corridor" but within the

Fischer tract, which tract Kaufman allegedly acquired in a Bass River tax sale

in 1971 and conveyed to Denise by deed in 2000. After the State's title expert

pointed out that regardless of any mapping error, Kaufman could not have

acquired title to lands lying in Little Egg Harbor based on tax sale certificates

A-2823-16 133 issued by Bass River, Phoenix developed a new basis for its claim to title to

Properties IV and V.43

Conceding "it was a mistake" for him to have "ascribe[d] title to

[Properties IV and V] to the Bass River tax foreclosure," Apell claimed

Phoenix's title actually rested on its acquisition of "all property owned by

George Kudra and his company Kupire Corp., in Little Egg Harbor via a deed

and a settlement agreement with . . . Phoenix." Specifically, Phoenix now

traces its title from Beyer's 1894 deed to Fischer through a series of a dozen

mesne conveyances to a May 23, 1974 deed from Burlington Company

Investment Corp. to "George Kudra, of 999 South Broad Street, [Trenton] as a

trustee according to a deed of trust given on even date herewith," recorded in

Ocean County on July 19, 1974. The deed states the land is located in Bass

River in Burlington County, and the metes and bounds describe the Fischer

tract, which, because it pre-dated Schweppenheiser's survey, was not then

understood to include Property IV or V. Phoenix took title from Kupire,

43 In its first amended complaint, Phoenix put forth yet another basis of its title to Property IV, claiming it derived from a 1993 deed to Phoenix from Pinelands Materials & Supplies, Inc. It apparently abandoned that claim in favor of one based on the Kupire deed. A-2823-16 134 without a deed from Kudra to Kupire and without the deed of trust referenced

in the 1974 deed into Kudra.

Specifically, in 2005, Kudra entered into an unrecorded settlement of at

least four different actions brought by Pine Island Cranberry Company against

Kupire in Burlington and Ocean Counties, and one action by Phoenix against

Kupire in Ocean, whereby, among other things, Kupire, agreed to convey by

deed, without covenants, to Phoenix, or its designee, certain "excluded

property" defined as

[a]ll right, title and interest of Kupire Corporation in and to any lands in the Township of Little Egg Harbor, County of Ocean and State of New Jersey, including without limitation to, any land located within Block 3, Lot 9.01 on the current Tax Map of Little Egg Harbor Township.

Block 3, Lot 9.01 on the 2005 Little Egg Harbor tax map is Phoenix's

consolidated lot following its annexation of the State's lands.44

That settlement agreement was signed on Kudra's side by his court

appointed conservator, Steven P. Rotella; Kudra's wife, Kathryn M. Kudra, and

44 As part of the same settlement agreement, Phoenix agreed to discharge a mortgage Kupire had given to Robert Kaufman on another property north of Properties IV and V and separated from them by another parcel, which Kaufman had assigned to Phoenix, and to dismiss a quiet title action against Kupire, which also did not involve Properties IV or V. A-2823-16 135 four of the Kudras' six children, Kathleen Kudra, Ireen Kudra-Miller, Karyn

Coyne, and Tara Kudra.45 In addition to providing that Kupire would convey

all the land it owned in Little Egg Harbor to Phoenix, the agreement also

provided that Pine Island, Kupire and the Kudras would "execute and deliver

to . . . Phoenix and Denise, a release of all liens, claims, encumbrances and

rights they may hold or be entitled to assert against the Excluded Property " and

to "execute such additional documentation as Phoenix may reasonably require

to clear the Excluded Property" of such. In accordance with the settlement

agreement, Kupire provided a quitclaim deed to Denise conveying all the land

Kupire owned in Little Egg Harbor, which was recorded on January 25, 2005.

In 2015, ten years after that settlement and more than three years into

this case, and following Phoenix's abandonment of its claim of title to

Properties IV and V through Kaufman, it demanded the four surviving Kudra

children sign quitclaim deeds conveying to Phoenix the lands described in

Schweppenheiser's outbound survey of Block 3, Lot 9.01, formerly known as

Block 3, Lots 8, 9, 11, 12, 13, 14, 15, 16, 17 and 18 [Property IV], and Block

45 Kudra died in 2006 with a will leaving his entire estate to his wife Kathryn. Kathryn died in 2012, leaving her estate to five of the Kudras' six children. Kathryn's will appointed her daughters Kudra-Miller and Coyne co-personal representatives. A-2823-16 136 4, Lots 5, 6, 7, 8 [Property II], 8.01 [Property III], 9, 10, 11 [Property VI], part

of 12 and part of 14 and also including former Lot 19, Block 3 [Property V] on

the Little Egg Harbor tax maps.

Kudra-Miller testified at deposition that she had never heard of the

Fischer tract and believed her father's cranberry farm, which consisted of

"thousands of acres" was located in Bass River in Burlington County, not in

Little Egg Harbor in Ocean County. At trial, she testified she believed some of

the farm may have been located in Little Egg Harbor based on some dealings

her father had with Phoenix, but she "had no idea where." While she

confirmed her father was the George Kudra in the 1974 deed from Burlington

Company Investment Corp. based on the office address listed on the deed, she

had no knowledge of the trust referenced therein. She testified she and her

sister, Karyn Coyne, only executed the quitclaim deeds because Phoenix

threatened to sue them otherwise, and only after Phoenix agreed to indemnify

them for any claims or losses arising out of their doing so.

As already noted, the State's title expert testified that, leaving aside the

absence of any deed into Kupire, Phoenix could not establish its title to

Properties IV and V because its failure to locate the trust instrument through

which Kudra took title created a hole in its chain that Kudra's daughters,

A-2823-16 137 Kudra-Miller and Coyne, could not fill as they were without authority to

convey property their father had taken in his capacity as a trustee. Apell,

Phoenix's expert, agreed there was a hole in Phoenix's chain "until we found

the settlement agreement, which clearly indicates that Kudra and Kupire and

his group and relatives entered into the settlement agreement," which "clearly

indicated that Phoenix Pinelands was to get the Kupire property in Ocean

County."

Pressed on how the settlement agreement cured the absence of the trust,

Apell testified he had "seen many, many trusts and corporations that do not

have information that's recited in the deed recorded somewhere." In such

cases "[n]ormally what you do" in the case of a corporation is "you get all of

the heirs of all the board members, if you can find them . . . . And the same

thing would apply to a trust." Apell was forced to concede, however, that

Kudra's "authority to convey this property would have been outlined in the

trust agreement," and without it one cannot know whether Kudra actually had

authority to convey it.

Agreeing with Apell, the trial judge found "as a trustee, Kudra heirs

were beneficiaries of title and it had passed to them." He held that Phoenix

obtaining title to Property IV and V from the heirs of Kudra "would be the

A-2823-16 138 appropriate course . . . consistent with Zabriskie v. Morris & Essex R.R. Co.,

33 N.J. Eq. 22, 27 (Ch. 1880)," and Phoenix thereby holds legal title to

Properties IV and V. The court also concluded Phoenix possessed equitable

title to Properties IV and V as a result of the settlement agreement and the

deeds from the Kudra heirs, which it deemed "sufficient to award judgment

[in] ejectment and quia timet," citing Ferrell v. Strong, 73 N.J. Eq. 242 (Ch.

1907), and Atl. City R.R. Co. v. Johanson, 72 N.J. Eq. 332, 333 (Ch. 1907).46

46 Ferrell is a five-line decision by the vice-chancellor suspending "further proceedings in the law court" until "a decree may be had under the present bill in equity" resolving the facts "set forth in the bill disclos[ing] an estate in the lands in question," which could not be resolved in the action at law. 73 N.J. Eq. at 242. It does not support the proposition for which it is cited, and in light of the merger of law and equity jurisdiction in a single Superior Court in the 1947 Constitution, appears to stand only as a historic artifact of our pre - 1947 court system.

Atlantic City Railroad likewise is a case decided before the 1947 Constitution at a time in which legal and equitable actions were relegated to separate courts in our State. There, the vice chancellor preliminarily enjoined enforcement of a judgment obtained after trial in the supreme court against the plaintiff railroad, ejecting it from land over which it had operated a steam train for twenty-five years, which judgment had been affirmed by the Court of Errors and Appeals. Atl. City R.R. Co., 72 N.J. Eq. at 332. The preliminary injunction issued based on the railroad's averment that it laid the track over the lands of defendant Johanson's predecessor in title at the predecessor's behest and agreement to deed the land to the railroad, but had never been given the deed. Id. at 333-35. Accepting the railroad's averments as true for purposes of the application, the vice chancellor held the railroad stated a claim of equitable title, which would "entitle it to the protection of a court of equity and of which

A-2823-16 139 Based on the Schweppenheiser mapping error, the judge also found the

State's predecessors in title never owned Properties IV or V, notwithstanding

their deeds or, as to Property IV, the 1978 tax sale foreclosure through which

the State's immediate predecessor, Pickell, acquired title to Lot 18, Block 3,

Property IV.

Having reviewed the record, we find the trial court clearly erred in

finding Phoenix established legal or equitable title to Properties IV and V.

This was not a quiet title action in which Phoenix could sit back and rely on

the weakness in the State's title it claimed existed as a result of the historic

mapping error alleged by Schweppenheiser. See Toth, 1 N.J. at 405-06;

Fittichauer, 70 N.J. Eq. at 435-36; McGrath, 70 N.J. Eq. at 364-66. Phoenix's

quiet title action was dismissed by Judge Buczynski, an order Phoenix has not

it could not have availed itself as a defence in the action of ejectment" by the owner of the legal title in the prior action in the law court. Id. at 333.

The case thus does not stand for the proposition that equitable title is sufficient to establish title in ejectment — but actually just the opposite. The railroad was ousted from the land to which it claimed equitable title, a decision affirmed by the State's then-highest court, Johanson v. Atl. City R.R. Co., 73 N.J.L. 767, 768 (E. & A. 1906), because "[a]n equitable estate of the character named is not available as a defence to an action of ejectment by the owner of the legal title." Atl. City R.R. Co., 72 N.J. Eq. at 335; see also Jason v. Johnson, 74 N.J.L. 529, 531 (E. & A. 1907) ("It is unnecessary to say that in an action of ejectment the plaintiff must succeed, if at all, upon the strength of his legal title. An equitable title is not sufficient."). A-2823-16 140 appealed. As already noted, Phoenix's burden in its quia timet and ejectment

action was to establish its own paper title "free from all reasonable doubt,"

Shotwell, 24 N.J. Eq. at 387, and to "recover upon the strength of [its] own

title," not "rely[ing] upon the weakness of that of [its] adversary," Troth, 68

N.J.L. at 37.47

Phoenix conceded there was a link missing in its chain of title from

Kudra, who took the 1974 deed from Burlington Company Investment Corp.

"as a trustee according to a deed of trust given on even date herewith."

Phoenix relies on the 2005 deed to Denise from Kupire to support its claim to

title. But there is no recorded deed from Kudra to Kupire. Moreover, without

47 In its brief on appeal, Phoenix asserts the State bears the same burden, setting up a battle over "paramount" title to each parcel. It is certainly true the State pressed claims against Phoenix in quia timet and ejectment and thus bears the burden of proof on those affirmative claims. And although Phoenix is correct that Judge Buczynski also dismissed the State's quiet title claim, he did so because Phoenix's suit was already pending when the State asserted its quiet title counterclaim, see N.J.S.A. 2A:62-1, not because the State couldn't establish its peaceable possession. Those different reasons for the dismissal of the parties' quiet title claims are critical here. Judge Buczynski found Phoenix's acts of attempted dominion over the State's parcels by posting signs and cutting fire lanes, having Denise surreptitiously made the assessed owner and paying taxes on the parcels for five years, did not demonstrate "peaceable possession of the property" but instead acts "adverse to somebody who is in peaceable possession of the property." So even in the event the State could not establish its paper title, which we find is true only as to Property VI, discussed infra, it "will retain possession until [it] is ousted by someone who has a superior title." Troth, 68 N.J.L. at 37. A-2823-16 141 the deed of trust, there is no way of knowing, as Phoenix's expert was forced to

concede, whether the trust granted Kudra the power to convey the property to

Kupire, or anyone else. While Phoenix's expert analogized the situation to one

involving a defunct corporation, where statute permitted surviving directors to

act as trustees to convey corporate property in the process of winding up its

affairs, see N.J. Rev. Stat. § 14:13-4, superseded by N.J.S.A. 14A:12-9

(1968), he did not cite any case or statute supporting his position that "the

same thing would apply to a trust," and the case the trial judge relied on,

Zabriskie, does not support it.48

In asserting the court should overlook the hole in its chain of title,

Phoenix overlooks it created the gap by its own acts. Denise ostensibly took

48 Zabriskie involved an implied testamentary trust under the decedent's will. 33 N.J. Eq. at 23. Following the death of the last survivor of the decedent's executors, the implied trust remained obligated to pay the income to the decedent's children, whether earned through rents or, upon sale of the land, the reinvestment of the proceeds. Id. at 26-27. The last survivor having not conveyed the land, the chancellor held "[b]y law his estate therein descended to his heir at the common law, his eldest son," who could thus convey the land, and discharge the continuing obligations to the decedent's heirs. Id. at 27. The obvious difference between Zabriskie and this case is there the chancellor's decision that the real property expressly devised to the decedent's children necessarily passed to the trustee in fee, and on his death to his eldest son, in order to carry out the testator's intent, rested on the chancellor's examination of the terms of the trust implied in decedent's will. Zabriskie provides no guidance for how a trust no one can find should be interpreted. The case simply has no applicability to the matter at hand. A-2823-16 142 title from Kupire, which never appears to have held title to Properties IV or V.

Neither the settlement agreement nor the 2005 deed from Kupire to Denise

represented otherwise. Indeed, the settlement agreement did not involve

Properties IV or V in any fashion. Phoenix presented absolutely no proof at

trial that Kupire possessed title to Properties IV and V in 2005 or at any other

time. Certainly a reasonable title search in 2005 would have readily revealed

Kupire had no title to either Property when it issued its quitclaim deed to

Denise. See Glorieux, 88 N.J.L. at 203 (holding a purchaser "is bound to

examine his own title or take the risk of not doing so"). Accordingly, Denise

did not, and could not, acquire legal title to Properties IV and V by its 2005

deed from Kupire.

As the settlement agreement did not address Properties IV or V, it is

difficult to understand why the trial court found it conferred equitable title on

Denise. Our courts have long held that on execution of "an executory

agreement for the sale of lands, the purchaser becomes the equitable owner of

the lands." Delancey & Stockton Corp. v. Reliable Improvement Co., 134 N.J.

Eq. 71, 75 (E. & A. 1943). The "doctrine is an application of the maxim that

equity regards as done what ought to be done, Pomeroy, § 368, and on it

specific performance mainly depends." Delancey & Stockton Corp., 134 N.J.

A-2823-16 143 Eq. at 75. But Kupire executed and delivered the deed required by the

settlement agreement, making Denise not only the equitable owner of the lands

Kupire held in Little Egg Harbor, but the legal owner as well. Denise's

problem was not that Kupire failed to convey the land it agreed to convey in

the settlement agreement, it's that Kupire didn't own Properties IV or V.

Although Apell testified the settlement agreement "indicated that

Phoenix Pinelands was to get the Kupire property in Ocean County," Phoenix

now claims the settlement agreement also entitled it to any lands the Kudras

owned in Little Egg Harbor. But the Kudras and Pine Island only agreed to "a

release of all claims, encumbrances and rights they may hold or be entitled to

assert against the Excluded Property," defined, not as all lands in Little Egg

Harbor, but as "[a]ll right, title and interest of Kupire Corporation" in any

lands in Little Egg Harbor, and to "execute such other and further documents

as Phoenix may reasonably require in connection with conveyance of the

Excluded Property." The "Excluded Property" is plainly limited to Kupire's

property in Little Egg Harbor. Further, Phoenix and Denise acknowledged in

the agreement that the property descriptions were not prepared by Kupire or

the Kudras. Thus, the agreement, by its plain language, only requires the

Kudras, like Pine Island, to release any claims they have to property owned by

A-2823-16 144 Kupire in Little Egg Harbor, which, as Phoenix necessarily concedes, did not

include Properties IV or V. It did not obligate them to convey land the family

might otherwise own in the Township.

Moreover, even if, as Phoenix asserts, the settlement agreement also

evidenced an agreement by the Kudras to release any rights they had to any

property in Little Egg Harbor, not just to any claims or rights they might have

to Kupire's property there, Phoenix would have to establish the Kudras

possessed title to Properties IV and V with the power to convey it in order to

establish a claim of equitable title. "Specific performance of a contract to

convey realty . . . will not be granted where the vendor shows a complete

failure of title." Robinson-Shore Dev. Co. v. Gallagher, 26 N.J. 59, 72 (1958).

The "rule comes within the general doctrine that a court of equity will not

compel a party to a contract to perform that which is impossible." Ibid. Thus,

even reading the settlement agreement as Phoenix does, a reading clearly at

odds with the document, it does not establish Phoenix's equitable title because

Phoenix failed to produce the trust instrument through which Kudra took title

to the land in 1974, and thereby failed to establish that George Kudra

possessed title to Properties IV and V with the power to convey it.

A-2823-16 145 Significantly, when Phoenix took its deed from Kupire in 2005, Kudra

was still living and available to produce the trust under which he took title to

the property in 1974 or explain its terms and identify its beneficiaries. Relief

could have been sought from the chancery court at that time, if necessary, to

establish Kudra's right to convey or otherwise relinquish title to the property.

See N.J.S.A. 2A:16-55; In re Trusteeship of Sotnikoff, 34 N.J. Super. 422,

425-26 (App. Div. 1955); R. 4:83. Having failed in its duty of inquiry to

confirm Kudra possessed the power to convey or relinquish the property,

Phoenix cannot hope to cure its dereliction now by taking quitclaim deeds

from indirect heirs of the trustee with no knowledge of the terms of the trust,

even if the settlement agreement required the heirs to give such deeds, which it

clearly does not.49 Thus, neither the deeds from the Kudra heirs nor the

49 In his 1957 article in the Rutgers Law Review, "The New Jersey Recording Act — A Study of its Policy," cited by the Court in Palamarg, 80 N.J. at 453, 458 n.8, Donald Jones addressed the problem presented by references in old deeds indicating "the grantee is holding title in a fiduciary capacity" and "there is no recorded instrument in which the powers, duties and restrictions of the alleged fiduciary are set forth." 12 Rutgers L. Rev. at 353-55. Jones argued that putting any purchaser beyond the one taking title from the fiduciary to "the burden of inquiry outside of the record as to the existence, terms, and conditions of an unrecorded trust instrument indicated by a recital in a recorded instrument, would be in direct conflict with the policy of the Recording Act" and "would impose a burden upon purchasers and mortgagees from one generation to the next to make repeated, and often fruitless, inquiries

A-2823-16 146 settlement agreement furthers Phoenix's cause or establishes even a right to

equitable title to Properties IV and V under the circumstances, much less legal

title to those lands.

Because Phoenix has failed to establish its title to Properties IV and V,

the State remains in possession, free from any claim by Denise or Phoenix.

See Troth, 68 N.J.L. at 37. We are also satisfied the State has established its

title to Property IV and V without regard to the mapping error allegedly

discovered by Schweppenheiser in the course of preparing Denise and

Phoenix's lot consolidation. Our reasons are two-fold.

First, Phoenix does not dispute that the State presented an unbroken

chain of title to Properties IV and V back to the Proprietors. Phoenix's attack

as to the nature and terms of such instrument." Id. at 354. Jones wrote that a buyer taking title from a trustee pursuant to an unrecorded trust instrument could assume his seller "has the power to receive and hold the property as trustee; he cannot, however, assume [his seller] has the power to convey as trustee, and therefore is under a further duty to inquire from [his seller] as to the terms and present status of the trust." Ibid. Jones thus advocated for putting the onus on the purchaser taking title from the fiduciary to make certain his seller had the power to convey as trustee, and letting future bona fide purchasers for value without notice "conclusively presume" in the absence of a recorded trust, "that the first purchaser [from the fiduciary] performed his duty of inquiry; found that [the trustee] was acting within his proper powers in making the conveyance; and that there was no recordable trust instrument in existence." Ibid. The practical policy Jones advocated would not assist Phoenix here, precisely because it failed in its duty of inquiry in taking title in 2005. A-2823-16 147 on the State's title, and the trial judge's rationale for declaring the State lacked

title to Property IV and Property V, the latter of which we will address further

in our discussion of Property VII, rested entirely on the mapping error

allegedly discovered by Schweppenheiser nearly ten years after the State

purchased Properties IV and V.

The State purchased Property IV, a seven-and-a-half-acre parcel, in 1994

from the executors of the Estate of Herbert Pickell, who had obtained the

Property in a 1978 tax sale judgment foreclosing the right of redemption of the

assessed owner, Bertha Boehm, and all those claiming under her, for failure to

pay the taxes on the parcel designated as Block 3, Lot 18 on the Little Egg

Harbor tax map. Phoenix claims the interests of its predecessors in title were

not extinguished by that foreclosure because the certificate holder, Pickell,

failed to name as defendants those persons in the Fischer chain that the

mapping error might suggest had an interest in the property. See N.J.S.A.

54:5-91. Leaving aside that collateral attacks on decades-old tax judgments

are not generally permitted, see O & Y, 120 N.J. at 457; Reaves v. Egg Harbor

Twp., 277 N.J. Super. 360, 364-65 (Ch. Div. 1994), neither Phoenix nor

Denise has standing to attack that judgment as we have determined they have

no interest in Property IV. See Reaves, 277 N.J. Super. at 366-67.

A-2823-16 148 Further, in asserting the Pickell foreclosure failed to cut-off the interests

of those in the Fischer chain of title, Phoenix did not address, and the trial

court did not consider, the effect of an after-discovered error in a municipal tax

map on a tax title, which is considered "a new and independent grant from the

sovereign" that is "established upon the assessment," and thus "[i]n the

quantity and character of the property conveyed . . . embraces nothing more or

different than did the basic assessment." S.R.H. Corp. v. Rogers Trailer Park,

Inc., 54 N.J. 12, 15 (1969) (quoting Metro. Life Ins. Co. v. McGurk, 15 N.J.

Misc. 572, 574 (Cir. Ct.), aff'd, 119 N.J.L. 517 (E. & A. 1937)). Because

neither party briefed the issue on appeal, we do not consider whether

Schweppenheiser's opinion that the 1959 Little Egg Harbor tax map mis-

located Properties IV and V could affect the tax sale judgment vesting title to

Block 3, Lot 18 (Property IV), a new and independent grant established on the

assessment, in the executors of Pickell's estate.

Second, in declining to consider the issue, we are also mindful of the

implications this alleged mapping error, if generally accepted, might have for

other land titles in the area, because it places more of the Fischer tract in Little

Egg Harbor, and thus in Ocean County, instead of in Bass River and

Burlington County than previously understood. Owners of affected lands not

A-2823-16 149 before the court may have different views. There is also the obvious fact that

this survey was done as part of Denise and Phoenix's unlawful efforts to annex

the State's lands by surreptitiously wiping the State's holdings off the

municipal tax map,50 and the long history of questionable surveys in the

Pinelands.51 Vice Chancellor Pitney chronicled "the well-known practice" that

"prevailed in West Jersey for so many years in making proprietary surveys" in

McCullough v. Absecon Beach Land & Imp. Co., 48 N.J. Eq. 170, 191-92 (Ch.

1891).

It is a matter of history that many of those surveys, when run by the monumental calls, contained several times as many acres as they called for and as their strict courses and distances would include. The proprietors were, by this means, defrauded of vast quantities of land, it being uniformly held by the courts that the monuments must govern. They finally

50 Schweppenheiser, the surveyor who "discovered" the mapping error, testified under oath at deposition that he was aware of the State's ownership of the parcels because they bore the legend "exempt – NJDEP" on the Little Egg Harbor tax map, although he didn't remember that at trial, saying it had "been too long" to recall. 51 The Director of the State Archives has noted that "[e]arly land descriptions in West Jersey are known to use 'chain' to mean a measure of two rods (thirty - three feet) as opposed to four rods" or sixty-six feet, the typical measure. Joseph R. Klett, Using the Records of the East and West Jersey Proprietors, New Jersey State Archives, 26 (2014), https://www.nj.gov/state/archives/pdf/ proprietors.pdf. We have no way of knowing whether Schweppenheiser considered such anomalies in concluding that previous surveys of the Adams tract contained a mapping error. A-2823-16 150 refused to act upon any survey which called for more than one monument, and that must be the beginning point. Instances of these surveys are found in Lippincott v. Souder, 8 N.J.L. 161 (Sup. Ct. 1825); Curtis v. Aaronson, 49 N.J.L. 68 (Sup. Ct. 1886); and Justice Ford refers to them in Corlies v. Little, 14 N.J.L. 373, 374 (Sup. Ct. 1834).

Having considered all these matters, we think it best we withhold any

endorsement of Schweppenheiser's mapping error that it might be litigated in

the future, if necessary, by parties having a real interest in the controversy.

Property VI was originally part of the 4,662.89 acre Adams tract, and a

part of the easterly 2,797.74 acre portion conveyed to Meyer Beyer in 1894.

The Property is also one of the several "corridor lots" the Beyers created along

the easterly line of the Adams tract, although not one affected by the alleged

mapping error discovered by Schweppenheiser. The State purchased

Properties V, VI and VII in 1994 for $95,388 by one deed from Continental

Searchers and the Estate of Wolf Herskowitz, describing each of the three

tracts by metes and bounds as well as Block and Lot designations.

Specifically, Tract I of that deed describes Property V, Block 3, Lot 19 on

Little Egg Harbor's tax map before its alteration at Phoenix's behest, a lot of

less than half an acre. Tract II is Property VI, a sixty-six acre lot designated as

A-2823-16 151 Block 4, Lot 11 on that tax map; and Tract III, an almost fifty-three acre lot, is

Property VII, designated as Block 4, Lot 13. In addition to the deed, the State

received an affidavit of title from Williams Gibbs, the trustee of the

Herskowitz Estate, attesting to the Estate's ownership of all three tracts.

The Estate claimed to have acquired its title by way of an April 27, 1894

deed from the Beyers to Isadore Milkenstein for a 150-acre tract described by

metes and bounds. Milkenstein and his wife, Rosa, conveyed the same

property three months later to Wolf Herskowitz, the latter deed being recorded

on October 26, 1900, in Burlington County.

Continental Searchers, Inc. obtained its interest in Properties V, VI and

VII by way of a 1983 final judgment by consent against the Herskowitz Estate

awarding Continental Searchers fifty percent of the same property described in

the Beyer to Milkenstein and Milkenstein to Herskowitz deeds to be held as

tenants in common. Ten years later, Continental Searchers and the Estate of

Herskowitz took a quitclaim deed from Robert Kaufman, individually and as

Trustee of K&D Land Trust for the same property described in the Continental

Searchers 1983 final judgment, only excepting that portion designated as

A-2823-16 152 Block 4, Lot 12 in Little Egg Harbor. 52 The deed further described the

property conveyed as "known and designated on the Tax Map of the Township

of Little Egg Harbor as Lot 19 in Block 3 and Lots 11 and 13 in Block 4."

After suit was filed, however, the State was forced to concede that

notwithstanding the explicit conveyance of Block 4, Lot 11 (Property VI) in

both the Kaufman and Continental Searchers/Estate of Herskowitz deeds,

neither grantor could establish title to Property VI, and thus the State's title to

that Property could not be traced further than those two deeds. Simply stated,

the metes and bounds descriptions in the Beyer to Milkenstein and Milkenstein

to Herskowitz deeds, while sound as to Properties VII and V,53 do not include

52 Block 4, Lot 12 is not, apparently, included in the description, and thus there was no need to except that parcel. The State's title expert, Grabas, posited that Kaufman took deeds in 1969 from the Beyers' heirs in an effort "to acquire any possible outstanding interest left vested in the Estate of Meyer Beyer pursuant to the 1893 deed from The Central Trust & Title Co. recorded in Ocean County" on November 22, 1893, conveying 6/10ths interest to the entire 4,662.89-acre Adams tract to Meyer Beyer. The 1993 quitclaim deed Continental Searchers and the Estate of Wolf Herskowitz took from Robert Kaufman in Grabas' view "undoubtedly extinguishe[d]" any interests Kaufman may have acquired by the deeds from the Byers' heirs as well as any rights Kaufman or K&D Land Trust, the assessed owner of Properties V and VII since 1970, may have acquired "through payment of taxes and purchase of Tax Sale Certificates." 53 Phoenix's title expert, Apell, explained in his initial report that the half -acre lot designated as "Block 3, Lot 19 [Property V] was intended to represent the

A-2823-16 153 Block 4, Lot 11 (Property VI). The State's experts conceded as much in their

reports and at deposition. The State defended against Phoenix's motion for

summary judgment in ejectment by arguing it was a bona fide purchaser for

value, and that a reasonable search would not have revealed Phoenix's chain of

title in Ocean County.

Phoenix traces its title to an 1894 deed for a 100-acre "corridor lot" from

the Beyers to Berman Herrman and Leon Kolmer, recorded in Burlington

County after Little Egg Harbor's transfer to Ocean County. In 1908, Herrman,

Kolmer and their wives conveyed the same property to George Orlov in a deed

western edge of the Milkenstein Tract (Block 4, Lot 13) [Property VII]." He maintained "[t]he Milkenstein Tract devolved as an entire tract and therefore the owner of the Milkenstein Tract would own both Block 4, Lot 13 [Property VII] and Block 3, Lot 19 [Property V]." Apell asserted that because Phoenix had title to Property VII by way of the Schell deed, discussed infra, Phoenix "is also the owner of the lands formerly designated as Block 3, Lot 19 [Property V] on the Little Egg Harbor Tax Map as a result of the conveyance from the heirs of Schell into David Denise and the Denise deed" to Phoenix. Apell further contended "[w]hen the eastern boundary of the Meyer Beyer corridor is properly located" per Schweppenheiser, "the Milkenstein Tract (Block 4, Lot 13 and Block 3, Lot 19) [Properties VII and V] should have properly extended west only to Cervetto Road," which "[u]nder those circumstances, there would have been no need to create a Block 3, Lot 19 [Property V] (as it is only the remainder of the Milkenstein Tract west of Cervetto Road)." In that event, Apell claimed Phoenix would have acquired title to Property V through Kaufman, which, as already explained, he subsequently abandoned in favor of his contention that Phoenix took title through Kudra, a claim we have rejected. A-2823-16 154 likewise mis-recorded in Burlington County. Six months later, in a deed also

mis-recorded in Burlington County in February 1911, Orlov and his wife

conveyed "the most northerly strip" of the same parcel to Alexander

Assuschkovitz divided into 114 lots, twenty-five feet wide by 100 feet deep.

The location of the lots is not otherwise identified. Orlov apparently made no

further conveyances of the property.

In 2000, well aware of the State's recorded deed to Block 4, Lot 11

(Property VI), Denise began a search for Orlov heirs, none of whom knew of

the property, and negotiated to purchase their fractional interests. Phoenix

represents Denise paid $65,943 for 97.5 percent of the outstanding interests of

the heirs in ten deeds, the last received in 2012, after the filing of this action.

The dispute on summary judgment was whether a reasonable search

would have alerted the State to the Herrman and Kolmer chain of title.

Although initially agreeing with the State that Phoenix's chain of title was non-

existent in Ocean County, Apell in a supplemental report noted "[u]pon further

research," that the 1894 deed from Beyers to Herrman and Kolmer was

recorded in Ocean County on July 6, 1971. Apell contended that "title

searching custom would require a diligent title search be conducted going back

to the Board of Proprietors in the records of both Ocean County and

A-2823-16 155 Burlington County with respect to the properties at issue located within the

Isaiah Adams tract," and that doing so "would have revealed the title from

which Phoenix's chain of title devolves." Grabas acknowledged a search that

complete would have revealed the deeds Phoenix relied on but disputed that

such a search was reasonable or customary, especially as the State's chain of

title was complete in Ocean County for one hundred years when it purchased

Property VI. He maintained a search to the Proprietors required complicated

title research that is very difficult and prohibitively expensive.

The judge found the State "had notice of Phoenix's title through the

Burlington recording," thus presumably accepting Phoenix's position that a

reasonable search would have required searching the records in both

Burlington and Ocean Counties back to the Council of Proprietors. As the

Supreme Court observed in Palamarg, "the art of title searching, upon which so

much of our conveyancing practice rests, has been created in very large part

without the aid of legislation and has received little attention in judicial

decisions." 80 N.J. at 461. Although acknowledging "the custom of title

searchers and conveyancers in New Jersey to search a title only for sixty years

A-2823-16 156 and until a warranty deed is found in the chain of title," 54 the Court declined in

that case to "adopt the custom of conveyancers and make the sixty-year search

convention a rule of law," recognizing the "potentially far-reaching effects" of

doing so. Id. at 460.

We do not believe the question of what would be a reasonable search in

this instance should have been decided on summary judgment. The State

denied Phoenix's contention that a reasonable search required searching both

counties after their separation in 1891. That position is in accord with the

general rule that a mis-recorded document does not provide record notice. See

Hadfield v. Hadfield, 128 N.J. Eq. 510, 513-14 (E. & A. 1941) ("The recording

of an instrument in its proper book is fundamental to the entire idea and

scheme of constructive notice through the records."); 1 Fineberg, Handbook of

New Jersey Title Practice § 702A at 7-6 n.3 ("Instruments must be recorded in

the county where the land they affect is located in order to impart constructive

notice."); N.J.S.A. 46:21-1, 46:22-1, repealed by P.L. 2011, c. 217, N.J.S.A.

46:26A-12 (2012).

54 One commentator suggests that because the use of warranty deeds "has been steadily declining in New Jersey, the term 'warranty deed' is best understood in this context as referring to a deed to a bona fide purchaser for value, regardless of the precise form of instrument employed." 1 Fineberg, Handbook of New Jersey Title Practice § 804 at 8-3. A-2823-16 157 The snippets of expert testimony referenced on the motion and included

in the appendix are simply insufficient to allow an understanding of the search

a competent searcher would deem reasonable in these circumstances. We are

not provided, for example, with the experts' opinions as to whether a

competent searcher undertaking a reasonable search of the title to Property VI

in 1994 needed to have searched for, or would be on notice of, the 1894 Beyers

to Herrman and Kolmer deed that Phoenix's expert found "[u]pon further

research" was recorded in Ocean County in 1971.

We note, again, that the record makes clear that neither title expert in

this case actually searched these titles. Both only reviewed the title work

Sharkey compiled over more than a decade of researching these titles and

those of the rest of the Adams tract. Judge Wells deemed the Adams tract, and

particularly the 2,797.7-acre easterly portion conveyed to Beyer as "a title

nightmare." Hyland, 204 N.J. at 354. The question is not whether these deeds

could be found, particularly after someone else had already located them after

years of searching, it's whether they would be found by a competent searcher

conducting a reasonable search of the title. See Palamarg, 80 N.J. at 456

(noting a "subsequent purchaser will be bound only by those instruments

A-2823-16 158 which can be discovered by a 'reasonable' search of the particular chain of

title").

In that regard, we note the self-serving nature of the assertion of

Phoenix's expert that "title searching custom would require a diligent title

search be conducted going back to the Board of Proprietors in the records of

both Ocean County and Burlington County with respect to the properties at

issue located within the Isaiah Adams tract." Denise testified at deposition

that he'd spent over $1 million searching these titles over the better part of

twenty years. Judging from what the State paid for the properties, that would

represent several times their market value. We would be loath to endorse a

standard that many might deem commercially unreasonable or one that could

possibly render vast swathes of the Pinelands either unmarketable or available

only to those willing to spend more on searches than on the land.55

Accordingly, we express no opinion on what would constitute a reasonable

55 See Jones, 12 Rutgers L. Rev. at 330 (noting "[i]nasmuch as [record] title can only be established by a search of the records, it follows that the stated policy [of the Recording Act] requires that this search be one which can be made within the bounds of reason, both as to time and expense, bearing in mind that what is reasonable under the circumstances existing in one generation may be unreasonable under those existing in a subsequent generation"). A-2823-16 159 search of title within the Isaiah Adams tract and do not endorse the trial court's

opinion on the issue.

Instead of basing our decision on whether a reasonable search

undertaken at the time the State purchased Property VI would have revealed

the roots of Phoenix's title, which we believe the record inadequate to

determine, we focus on the absence of any root of title to the Property in the

State's chain. A simple comparison of the property descriptions in the two

deeds the State took in 1994 from Continental Searchers and the Herskowitz

Estate and Kaufman with the Beyer to Milkenstein and Milkenstein to

Herskowitz deeds would reveal the Beyers did not convey Block 4, Lot 11

(Property VI) to Milkenstein and he did not convey Property VI to Herskowitz.

We are satisfied the State has no title to Property VI and Phoenix

established its title to that parcel free from any reasonable doubt. But Phoenix

"having acquired [that] title under 'circumstances which render it

unconscientious for the holder of the legal title to retain and enjoy the

beneficial interest, equity impresses a constructive trust on the property thus

acquired in favor of the one who is truly and equitably entitled to the same.'"

Bron, 42 N.J. at 96 (quoting Pomeroy, § 1053 at 119). Accordingly, the State

is equitably entitled to Property VI upon payment to Phoenix of the sum of

A-2823-16 160 $65,943, the sum Denise paid to acquire it, plus simple interest at the Cash

Management Fund Rate from the date of Phoenix's final payment to the Orlov

heirs.

Resolving the parties' dispute over title to Property VII involves simply

a legal question of the interpretation of the 1910 deed from Wolf Herskowitz

to Samuel Schell, which we review de novo. See State v. Quaker Valley

Farms, LLC, 235 N.J. 37, 55 (2018) (citing Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Both the State and Phoenix trace their titles to Property VII, a fifty-

three-acre tract formerly known as Block 4, Lot 13 on the Little Egg Harbor

tax map before Phoenix's changes, to the larger 150-acre tract located in both

Bass River and Little Egg Harbor that the Beyers conveyed to Isadore

Milkenstein in 1894 and Milkenstein and his wife Rosa conveyed two months

later to Wolf Herskowitz. They are not only in accord on those deeds, but also

agree that Herskowitz and his wife Sarah delivered a deed to Samuel Schell,

dated November 1, 1908, and recorded on February 28, 1910 in Burlington

County. What they disagree on is whether Herskowitz deeded the entire 150-

acre parcel to Schell or only ten acres of it.

A-2823-16 161 The Herskowitz to Schell deed begins by identifying the parties and the

one dollar consideration, and then states it conveys "[a]ll ten acres of the 150

acres of land, situated, lying and being in the Township of Bass River, in the

County of Burlington, in the State of New Jersey." The deed next immediately

reiterates that the conveyance "[c]ontain[s] 10 acres of land." It goes on to

explain the land conveyed is "a portion of" the 4,662.89-acre tract returned to

Isaiah Adams, "more particularly described" in the survey recorded in the

Surveyor General's Office in Burlington County. The deed further states the

"[t]ract of ten acres includes usual allowances for highways [b]ounded and

contained as follows," and then provides: "To wit: A part of this ground are

the ten acres beginning at a point South 28.40 west 28 chains and 40 links 56

from the 16th corner of the original survey," and proceeds to repeat the

description in the Milkensteins' deed to Herskowitz conveying the entire 150-

acre tract.

The State and Phoenix also agree that in April 1910, two months after

the Schell deed was recorded, Herskowitz conveyed Property VII to his

56 The correct distance is 82 chains and 40 links. The parties agree the same transposition error appears in the Milkenstein to Herskowitz deed and is likely a scrivener's error simply repeated in the Schell deed. The error was corrected in the deed Herskowitz gave to Perlman in 1910. A-2823-16 162 brother-in-law, Abraham Perlman, as collateral for a debt. That deed was

immediately recorded in Burlington County and states that it conveys the

entire 150 acres, using the same description as in the Milkenstein to

Herskowitz and Herskowitz to Schell deeds, "excepting ten acres of said parcel

heretofore sold and conveyed by the parties of the first part to Sam Schelies."

Perlman and his wife, Pauline, the following year conveyed the 150 acres back

to Herskowitz, again "excepting ten acres of said parcel or tract of land,

heretofore sold and conveyed by the parties of the first part to Sam Sch elies."

The Perlman to Herskowitz deed is dated October 5, 1911, and was recorded in

Burlington County on January 4, 1912.

Both parties' experts agreed at trial that there is no way to locate the ten

acres conveyed to Schell within the larger 150-acre Milkenstein tract and thus

no way of knowing whether it is contained somewhere within the fifty-three

acres of Property VII.

In interpreting the deed, the trial judge looked for guidance to Bellisfield

v. Holcombe, 102 N.J. Eq. 20, 21-23 (Ch. 1927), which involved the

construction of an agreement between two brothers — pharmacists —

providing for a life insurance policy payable to their wives in lieu of any claim

A-2823-16 163 the wives might have had to the partnership property on death of one of the

brothers. The trial judge quoted the chancellor, who noted

[i]t is a primary canon of construction of contracts that all the rules are subordinate to the leading principle that the intention of the parties is to be collected from the entire instrument and must prevail, unless it is subversive of some established rule of law; and that in the case of ambiguity the court may resort to proof of the circumstances under which the contract was made, to aid in ascertaining such intention.

[Id. at 27.]

The recital in the Bellisfield agreement — that the contract was made for the

purpose of providing for the widow of either brother in case of his death with

the proceeds of the insurance policy — was clear, but the operative part of the

agreement inconsistently stated that on one partner's death, an account of the

partnership was to be made and any sum remaining to the deceased partner was

to be paid to his wife. Id. at 23.

The chancellor in Bellisfield acknowledged the English rule

applicable to the construction of instruments of writing; that if the recitals are clear and the operative part is ambiguous, the recitals govern the construction; and that if the recitals are ambiguous and the operative part is clear, the operative part must prevail; and if both the recitals and the operative part are clear, but

A-2823-16 164 they are inconsistent with each other, the operative part is to be preferred.

[Id. at 29-30.]

He found, however, that although the operative part of the brothers' agreement

might be considered clear if standing alone, it could only be deemed

ambiguous in context because so "totally foreign to the recitals." Id. at 30-31.

"The result," the chancellor concluded, was that the operative portion "must be

treated as surplusage; and the construction of the instrument according to the

true intent and meaning of the parties must be rested upon the recitals part

only." Id. at 31.

Despite looking to Bellisfield, and finding the Schell "deed describes a

probable intent to convey 10 acres,"57 the trial judge relied on Apell's opinion

57 The judge explained that "Apell described the conflict within the deed as one of probable intent versus actual intent." Apell testified the references to ten acres in the deed in his opinion had "very little significance since it doesn't indicate where the ten acres is, and we have a metes and bounds description here." Apell asserted that "all of the real estate treatises, the court cases such as Jefferson v. Davis, [25 N.J. Super. 135 (Ch. Div. 1953)] and even boundary books on surveying all clearly indicate that if there are two types of descriptions, one being a metes and bounds and the other being approximate acreage, that the metes and bounds would control." He claimed "[i]f you cannot tie the intent to a specific description, then I think it's probable intent, not actual intent." He agreed with the statement that Herskowitz's actual "intent was to convey 150 acres" despite that the deed specifically referenced it conveyed only ten acres four times. A-2823-16 165 that the metes and bounds description in the deed, which describes the entire

150-acre tract and not ten acres, "should be given effect over the more general

reference to the number of acres conveyed." Stating it was applying "the rule

in [Bellisfield v.] Holcombe," the court found it "clear that in the instant case,

the operative part of the deed should control." The judge reasoned that "even

after consideration of all the surrounding circumstances, neither the 10 acres

nor the 140 acres remaining in Herskowitz could be located and plotted." The

judge pronounced it "clear, therefore, that the intent expressed in [the] recital

differs from the operative part of the deed, and the two cannot be reconciled."

Acknowledging the Perlman deed, "arguably resolv[ed] the issue of what

was probably intended to be conveyed to Schell," the court declined to give

that deed any significant weight in divining the intent in the Herskowitz to

Schell conveyance, because "the Perlman deed was not an actual conveyance"

but only "a security interest offered as a mortgage to secure a loan from

Perlman to Herskowitz." 58 The judge further noted the Perlman deed didn't, in

58 Although use of "defeasible" deeds to secure loans appears a not uncommon practice near the time when these deeds were exchanged, see Kline v. McGuckin, 24 N.J. Eq. 411, 413-15 (Ch. 1874), we have not unearthed any case suggesting the language of such a deed should be construed differently from that of an absolute deed. That is, perhaps, not surprising as the defeasance could be established by parol evidence, see Vandegrift v. Herbert,

A-2823-16 166 any event, resolve the conflict between the recital and "the operational section

of the [Schell] deed provid[ing] a metes and bounds description for 150 acres."

The judge resolved the conflict by rejecting what he deemed to be

Herskowitz's "probable intent" to convey only ten acres, instead relying on

Apell's testimony that "the specifics of the operational section controls," and

thus that the "Schell deed conveyed 150 acres, and the 10 acres should be

discarded." The judge found to do otherwise "would . . . work an injustice on

the [recording] system."

Having reviewed the record, it is clear to us the unambiguous intent of

the Herskowitz to Schell deed, subsequently reflected in the Herskowitz to

Perlman deed, was to convey only ten acres to Schell, not the entire 150-acre

tract, and that plainly expressed intent is controlling. See Normanoch Ass'n v.

Baldasanno, 40 N.J. 113, 125 (1963) (instructing "the prime consideration in

determining the meaning of the basic title instruments is the intention of the

parties"). We have no quarrel with the court's reliance on Bellisfield, only we

believe applying its holding mandates the rejection of the operative description

18 N.J. Eq. 466, 469 (Ch. 1867), making a defeasible deed indistinguishable on the record from an unconditional conveyance, which, of course, it would become in the absence of a deed of reconveyance on satisfaction of the debt. A-2823-16 167 of the entire 150-acre parcel because it is "totally foreign to the recitals." 102

N.J. Eq. at 30-31.

Bellisfield stands for the proposition that "[i]n construing a contract the

cardinal rule is to ascertain the intention of the parties." Id. at 26. More

modern authority is in accord. See Boylan v. Borough of Point Pleasant

Beach, 410 N.J. Super. 564, 569 (App. Div. 2009). As we explained in

Borough of Princeton v. Bd. of Chosen Freeholders of County of Mercer ,

"[T]he court's goal is to ascertain the 'intention of the parties to the contract as

revealed by the language used, taken as an entirety, . . . the situation of the

parties, the attendant circumstances, and the objects they were thereby striving

to attain.'" 333 N.J. Super. 310, 325 (App. Div. 2000) (quoting Cruz-Mendez

v. ISU/Insurance Servs., 156 N.J. 556, 570-71 (1999)), aff'd, 169 N.J. 135

(2001). The document is to "be read as a whole, without artificial emphasis on

one section, with a consequent disregard for others. Literalism must give way

to context." Ibid.; Boylan, 410 N.J. Super. at 569 (noting "in the absence of

extrinsic evidence, the court must determine a dispute concerning title by

construing the deed as a whole, without giving disproportionate emphasis to

any individual part of the document"). Finally, and perhaps most important,

the interpretation "should 'accord with justice and common sense.'" Borough

A-2823-16 168 of Princeton, 333 N.J. Super. at 325 (quoting Krosnowski v. Krosnowski, 22

N.J. 376, 387 (1956)).

Applying those principles to this legal question, we cannot find

Herskowitz deeded the entire 150-acre tract to Schell, instead of the ten acres

the deed repeatedly states is all that was conveyed. The cases relied on by

Apell and Phoenix, including Jefferson v. Davis,59 all lay down the same

general rules of construction, to wit:

As far as possible, effect is to be given, in construing descriptions in deeds, to both the general and particular or specific descriptions. Where, however, the general and particular descriptions of the land purporting to be conveyed are conflicting or repugnant to each other, the particular description will prevail over the general description, unless an intent to the contrary is otherwise manifested in the instrument.

[Jefferson, 25 N.J. Super. at 144 (emphasis supplied).]

59 In Jefferson, the question was whether the grantor conveyed the rights to the waters of a mill pond or to the waters and the submerged soil underlying those waters, by language in the deed that the grantors conveyed "all the following described tract of Land Plantation Grist Mill and Mill Pond and the priveleges of raising the Mill Pond and all his rights appurtaining to the raising and flowing of the Mill Pond," followed by a metes and bounds description that did not describe the land under the pond. 25 N.J. Super. at 140-42. "Considering the particular description and the general description" in light of a recital the court termed "clear and unambiguous," and considering "all of the facts actually here present," the court "concluded that the grantor here did not intend to convey a fee to the land submerged by the pond." Id. at 145-46.

A-2823-16 169 Here, the "contrary intent" to convey only ten acres of the 150 acres

particularly described is plainly manifested in the instrument. Herskowitz

deeded to Schell only ten acres of the 150-acre Milkenstein tract described in

the deed; the deed says so four times. Even Sharkey agreed. 60 Schell's ten

acres are not described and, as the experts all agree, cannot be located on the

ground.61 While that likely would have given Schell reason to refuse the

conveyance, see Kohlrepp v. Ram, 79 N.J. Eq. 386, 389-90 (Ch. 1911) (noting

chancery courts will "not force the title upon an unwilling purchaser unless the

facts to be established to make his title good were provable by public records,

or by other evidence obtainable by a holder of the title at any time thereafter

60 Sharkey wrote to Denise in January 2003 after reviewing the Milkenstein to Herskowitz, Herskowitz to Schell and Herskowitz to Perlman deeds that "Perlman re-conveyed the 150 acres to Herskowitz, excepting the 10 acres conveyed to Schelle. Samuel Schelle (Schelies) remains vested, in the record, of the ten acres he acquired by deed recorded in DBK [deed book] 458 page 34." 61 We reject the State's contention that the ten acres are part of the forty-four acres of the Milkenstein tract remaining in Bass River after the 1891 boundary line change. The State relies on the deed's recital of the ten acres being "situated, lying and being in the Township of Bass River." The deed, however, refers to the entire 150-acre Milkenstein tract as lying in Bass River, notwithstanding it was conveyed three years after the boundary line change, putting a part of the parcel in Little Egg Harbor. The deed does not define the location of Schell's ten acres, and thus it is not possible to determine on which side of the county line the Schell ten-acre tract lies, nor whether it is contained somewhere within the fifty-three acres of Property VII. A-2823-16 170 when needed"), we find it strains credulity to accept the chancellor hearing

that dispute would have ordered Herskowitz to convey the entire 150-acre tract

— more than ten times the acreage specified in the agreement — to Schell, see

Frenche v. Chancellor of New Jersey, 51 N.J. Eq. 624, 627 (E. & A. 1893)

(noting the general rule that when the variance between the acreage the seller

agrees to convey varies considerably from what a survey reveals "the party

sustaining the loss should be allowed for it, and this rule should prevail when

it arises from mistake only, without fraud or deception"); Burns Trading Corp.

v. Blue Front Market, 17 N.J. Super. 61, 69 (Law Div. 1951) (noting a court

will not compel a purchaser to accept, or a seller to convey, in a manner

effecting "a vital change" in their agreement). The cases are legion that it is

not the court's place to make a "new and different" agreement for the parties.

See Burns Trading Corp., 17 N.J. Super. at 70. We see no reason the passage

of more than one hundred years, in which neither Schell nor any heir has done

anything to assert their rights, should improve his position.

Accordingly, the trial court erred in relying on Apell's testimony that the

metes and bounds description prevailed "over the more general reference to the

number of acres conveyed" in the Schell deed. Although in the order of

importance in conflicting deed elements, area is generally deemed less

A-2823-16 171 important than those parts of a metes and bounds description such as

monuments, distance and direction, the Supreme Court has explained those

"preferences" are only guides "and will yield to the manifest intent of the

grantor if this can be ascertained." S.R.H. Corp., 54 N.J. at 20 (quoting 6

Thompson, Real Property (1962 Replacement) § 3044, pp. 571-76). Apell's

view that Herskowitz's "probable intent" to convey ten acres must give way to

his "actual intent" of having conveyed the entire tract by metes and bounds is

just another way of opining that the description predominates over the

grantor's clearly expressed intent, which is contrary to controlling precedent in

this State. See Stransky v. Monmouth Council of Girl Scouts, Inc., 393 N.J.

Super. 599, 610 (App. Div. 2007).

As Phoenix has only proved its title to ten, indeterminate acres of the

150-acre Milkenstein tract in Bass River and Little Egg Harbor, which its own

experts concede cannot be located on the ground, it has failed to establish title

to Property VII in quia timet, see Shotwell, 24 N.J. Eq. at 387, or ejectment,

see Perlstein, 12 N.J. at 204. Legal and equitable title to Property VII remains

in the State, which has established its own unbroken chain of title to the

A-2823-16 172 property,62 free from any claim by Denise or Phoenix. See Troth, 68 N.J.L. at

37.

Because we are satisfied the State established an unbroken chain of title

to Property VII, which is the same chain of title it possesses to Property V, the

little lot located directly across Cervetto Road to the west of Property VII, we

are also satisfied the State established its title to Property V, notwithstanding

the mapping error Phoenix alleges affects that Property. Both parties' title

experts opined Property V was actually part of the 150-acre Milkenstein tract

that includes Property VII, meaning, as Phoenix's expert opined, "the owner of

the Milkenstein tract would own both Block 4, Lot 13 [Property VII] and

Block 3, Lot 19 [Property V]." Because, as Phoenix's expert explained, "[t]he

Milkenstein Tract devolved as an entire tract," the State has established clear

title to both Properties V and VII.

62 We reject the trial court's finding that the State did not present proof "sufficient in the case" notwithstanding it would be deemed "sufficient in many cases," that "its grantors were, in fact, descendants of the heirs of Herskowitz" by relying "on surnames and the recitals in the deeds." No legitimate question was raised as to the identity of the Herskowitz heirs in the State's chain of title, and Phoenix's own research, included in the appendix, confirmed the individuals as Herskowitz's descendants. A-2823-16 173 Conclusion

To sum up, we reverse the judgment for Phoenix divesting the State of

its title to these seven Properties in the Preservation Area of the Pinelands

National Reserve. We declare Denise and Phoenix's surreptitious two decade-

long quest to undermine and cloud the State's title to those Properties and

establish its own competing chains of title, erasing the State's parcels from the

municipal tax map in the process, anathema to the principles undergirding New

Jersey's land title laws and an undue interference with the State's rights to

these lands, thus precluding Phoenix from all equitable relief.

We further find Phoenix did not establish title to six of the seven parcels

under its theories of quia timet or ejectment. As to Property VI, the only

Property to which Phoenix established its legal title, we hold it acquired title to

the outstanding interest "under circumstances which render it unconscientious

for the holder of the legal title to retain and enjoy the beneficial interest,"

Bron, 42 N.J. at 96 (quotation omitted), and thus impose a constructive trust on

the property in favor of the State. Accordingly, the State is equitably entitled

to Property VI upon payment to Phoenix of the sum of $65,943, the sum it paid

the Orlov heirs, plus simple interest at the Cash Management Fund Rate from

the date of Phoenix's final payment to the heirs.

A-2823-16 174 We accordingly remand for entry of judgment in recordable form,

declaring Denise and Phoenix have no interest in any of these seven

Properties, which shall be particularly described based on the plottings

performed by the State's survey expert, Barry Jones, in this matter, upon the

State's tender of payment for Property VI, and adjudging the State the owner of

each parcel in fee simple; the judgment to be prepared by the State. We do not

retain jurisdiction.

Reversed and remanded.

A-2823-16 175