Opinion
Argued October 19, 1938 —
Decided January 13, 1939.
1. Defendant owned a tract of land of twenty-five acres, under a deed which excepted therefrom an old burial plot of about one-quarter acre, and he leased these lands to plaintiffs, without any reference to the burial plot, for the purpose of marketing sand, gravel, c., from the lands under a royalty agreement with defendant. Machinery, a tool house and a road were placed on the lands by plaintiffs, after which they began removing sand from a pit on the land, in the course of which they encountered bones and a skull. They thereupon ceased work and were subsequently notified by the Board of Health to refrain from operations on the lands in question. Plaintiffs thereupon brought suit against defendant, alleging fraudulent misrepresentation. Held, that the court properly left that issue to the jury, and that there was sufficient evidence to support their verdict in plaintiffs' favor.
2. One who is about to lease lands is not under the duty of exploring the title of his landlord.
3. Where the deed for lands to be leased contains an exception of a portion thereof, the lessor cannot lease the entire tract without advising the lessee of the exception, and failure so to do amounts to a fraudulent misrepresentation as to the lessor's title.
On appeal from the Supreme Court, in which the following per curiam was filed:
"This is the defendant's appeal from a judgment entered against him in the sum of $5,000 in the Passaic Circuit. It appears from the complaint that the defendant, who owned lands in the borough of West Paterson, in Passaic county, entered into a written agreement leasing same to the plaintiffs. The agreement recites that the owner leased the land in question `for the purpose of exploitation of said land, and to take and carry away there — from all sand, gravel, stone, c.,' under certain terms and conditions. The terms were that the plaintiffs should pay the defendant twenty cents for every cubic yard of sand, c., removed and that in the event that the plaintiffs should lease adjoining land, and should use the defendant's land as a pasageway, that the defendant would be entitled to the sum of five cents per cubic yard for the privilege of passing or driving over his land.
"Pursuant to the agreement, the plaintiffs moved in machinery and a tool house and built a road on the property, after which they began removing sand from a pit. In the course of their work the bank collapsed and bones were uncovered; also a round object that had the appearance of a skull. This gave the plaintiffs some pause. One of the plaintiff's witnesses, Thompson, said that nonetheless the defendant told them to go ahead with their work. This the witness refused to do, saying that he believed that they were human bones. A sergeant of the police from West Paterson was called in with the result that the plaintiffs were told not to go ahead if they didn't want to risk a fine or a jail sentence.
"An investigation of the defendant's deed to the property showed that the land was described as containing twenty-five and three-tenths acres more or less `excepting out of the same an old burying ground consisting of about one-quarter of an acre.'
"The plaintiff Wilday testified that the defendant, Panas, upon being told that the plaintiffs were stopped by the police or the health officer of the borough, said, `It was nothing, he owns that property, and there never was a graveyard.' Later in the month a notice was served on the Westside Sand Gravel Company, presumably the plaintiffs' trade name, signed by the clerk of the Board of Health in the borough of West Paterson, notifying the plaintiffs that a nuisance existed on the premises in violation of `sections 2 and 4 of the New Jersey Health laws enacted March 21st, 1916. The said nuisance consists of removal of human bodies.' The notice concluded with the direction that the plaintiffs cause the same to be abated or suffer a penalty.
"The gravamen of the suit is fraud in the inception of the contract, the charge being that the defendant had fraudulently misrepresented to the plaintiffs that he owned all the land leased and by his misrepresentation in the premises the plaintiffs suffered injury, c.
"From the evidence the jury was entitled to believe that before the execution of the lease the defendant pointed out the boundaries of the land to the plaintiffs, told them where they could dig, and that this included the knoll in question where the bones were discovered.
"There are fifty-five grounds of appeal set out in the state of case and they are argued under six points.
"It is first argued that the court should have ordered a nonsuit or directed a verdict for the defendant on the ground that there was no evidence to support the pleading. As we view the evidence in the case we are clear that the court properly left that issue of fact to the jury. The argument of the appellant is that he leased that which he had and that he did not lease the cemetery portion mentioned in and excepted from the grant described in his deed. The lease, however, under which plaintiffs derived the right to dig and cart away sand and gravel, makes no exception but describes the locus in quo as `situated on Jackson Lane in the borough of West Paterson.' Again, it should be noted that the defendant denied the existence of a cemetery after the discovery of the bones in question.
"There was evidence to support the conclusion of the jury that the plaintiffs were prevented from working the land, not alone by the fear of punishment for violation of the law, but also by the threats of the defendant and his wife. Under this heading it is also said that the court erred in refusing one of the defendant's requests to charge. The point has no merit whatever and, consequently, requires no discussion. The request was properly refused.
"It is also argued under this heading that the plaintiffs should not have challenged the defendant's title to the premises unless there was a legal ouster, and that the plaintiffs were not legally ousted. But there was evidence that the plaintiffs were halted in their operations on the land in question, or prevented from enjoying its use, c., and that the situation thus obtaining was due to the fraudulent misrepresentations of the defendant, Panas, all of which, if the jury believed it, as apparently they did, was evidence of a constructive eviction. Goldberg v. Reed, 97 N.J.L. 170.
"It is next said that there is no such regulation mentioned as `sections 2 and 4 of the New Jersey Health laws enacted March 21st, 1916.' This indeed is true, but the health board admittedly had power to stop the plaintiffs from removing soil from a burying ground and that power was exerted in this case.
"The appellant's second point is that there was no evidence of the existence of a cemetery on the demised land or any proof of knowledge on the part of the defendant that a cemetery existed on the premises. This, too, was a question of fact for the jury.
"The next point is somewhat like the preceding one and the appellant states it in this fashion: that even if there was a cemetery on the defendant's land there is no proof that the defendant knew or could have ascertained its existence by the exercise of reasonable skill and care; hence no fraud has been shown or could have been shown. In the case there is testimony pro and con on this issue but the reservations in the defendant's deed would seem to be cogent evidence of the existence of a burying ground on a part of the farm and, in any event, the matter was for the jury.
"The appellant next says that the plaintiffs had no right to rely upon the alleged false representations when the character and extent of the defendant's title was a matter of record. If this argument were sound it would impose upon every tenant or lessee the duty of exploring the title of his landlord. We find no merit in the point.
"The next ground for reversal asserts that the court committed error in its statement to the jury as to the rule on damages. This point is not available to the appellant at this time. He had a rule to show cause on the matter of damages and that element of the case is res judicata. Cleaves v. Yeskel, 104 N.J.L. 497.
"Under the next heading it is argued that the court admitted testimony which should have been excluded on the theory that it was irrelevant and immaterial. But the argument in the brief challenges the testimony as incompetent, the claim being that it was secondary evidence. Its competency was not challenged at the trial and should not now for the first time be raised.
"Appellant further complains that the court, in its charge, defined the word `exploit,' although the court had refused to allow a witness to answer a question as to what the witness understood the word `exploit' to mean. No exception was taken to the court's charge in this particular and therefore the reviewing court will not consider it.
"We have examined other and sundry points in the appellant's brief and conclude that they require no discussion.
"The judgment will be affirmed, with costs."
For the appellant, Ward McGinnis.
For the respondents, George K. Slingerland (by Maurice Bernstein).
The judgment under review herein should be affirmed, for the reasons set forth in the opinion delivered per curiam by the Supreme Court.
For affirmance — CASE, BODINE, DONGES, HEHER, PERSKIE, PORTER, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 12.
For reversal — None.