Before BIGGS and KALODNER, Circuit Judges, and McGRANERY, District Judge.
This action in ejectment was begun in 1936. Over six years ago we reversed a judgment against the appellants, D.C., 31 F.Supp. 892, and remanded, because there had been no trial and all the evidence had not been adduced, 3 Cir., 117, F.2d 981. A trial was had, and the court below determined the cause against the appellants. D.C., 58 F.Supp. 787. On this appeal from that determination, we have to resolve an adjective question, whether there are indispensable parties who have not been joined, and two substantive questions, which of three deeds is valid and whether any reversionary rights exist under the valid deed or deeds.
The appellants are some of the heirs of one James Searing, the grantor in the three deeds involved. They reside outside New Jersey. There are, however, other heirs, some living in distant states, and others living in New Jersey. Those living in distant states did not join the appellants and those living in New Jersey were amended out of the original complaint because their presence would oust the federal jurisdiction, which insofar as this case is concerned, rests exclusively upon diversity of citizenship.All the heirs, of course, are interested in one and the same title as like heirs at law of the common ancestor. The issue is whether their interests are "joint" within the contemplation of Rule 19, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. If so, the presence of the other heirs is required, but that presence would not help the appellants, some of them being from the same state as the appellee. Nevertheless, if the other heirs are necessary, or merely proper parties, we may, by virtue of the same rule, proceed to the merits.
This Court has already had its say on indispensable parties generally. Picking v. Pennsylvania F. Co., 3 Cir., 1945, 152 F.2d 753; United States v. Washington Institute of Technology, Inc., 3 Cir., 1943, 138 F.2d 25; Baird v. Peoples Bank & Trust Co., 3 Cir., 1941, 120 F.2d 1001; Samuel Goldwyn, Inc. v. United Artists Corp., 3 Cir., 1940, 113 F.2d 703. As suggested in the Washington Institute case, indispensable parties under Rule 19 are those who were indispensable prior to the rules; they have such an interest in the controversy that a final decree cannot be made without either affecting their interests or leaving the controversy in such a condition that a final determination may be wholly inconsistent with equity and good conscience. Shields v. Barrow, 17 How. 130, 15 L. Ed. 158. As suggested in the Goldwyn case, if an absent party's interest be "joint", he is indispensable.
Appellants are here claiming their undivided share as heirs at law of an alleged reversion retained by their common ancestor. Under New Jersey law, their interest is that of tenants in common. N.J.S.A. 3:3-2, a law which has long been on the books of that State; see 2 Compiled Statutes of New Jersey 1910, p. 1917 and 1 General Statutes of New Jersey 1896, p. 1193.
The distinguishing feature of a tenancy in common is that each "tenant" has a separate and distinct freehold. 2 Tiffany, Real Property (1938) §§ 426-428, 467. At early common law, tenants in common could sue only separately to recover their aliquot shares, since they could not make a joint devise. See Davis v. Coblens, 174 U.S. 719, 725, 726, 19 S. Ct. 832, 43 L. Ed. 1147. Later, when it was determined that they could make a joint devise, several tenants in common, although less than all or even only one, could sue. Davis v. Coblens, supra; 18 Am.Jur. § 70.
The only case in New jersey which has been called to our attention is Board of Chosen Freeholders of the County of Cumberland v. Buck, 1912, 79 N.J.Eq. 472, 82 A. 418, 421, which was an action to quiet title brought against a co-tenant. There the court found that "an absolute title, as to the undivided one-half thereof, vested in the heirs of John Buck, deceased, by reverter". But there it appeared that the rights of the other heirs at law of the original owner of the remaining undivided half had sold their interests to the complainant. Nevertheless, the case suggests the separability of the interests of the tenants in common.
In Young v. Garrett, 8 Cir., 1945, 149 F.2d 223, a case also holding that Rule 19 is merely declaratory of the prior law, it was held that, in an action by one tenant in common for damages for trespass, the other tenants in common were not indispensable. The law of Arkansas was there applied. Reference may be made to the case of Elmendorf v. Taylor, 1825, 23 U.S. 152, 10 Wheat. 152, 6 L. Ed. 289, wherein the Supreme Court had before it a problem not dissimilar to that in the instant case. Justice Marshall held that the other tenants in common were not indispensable parties, and, at page 166 of 10 Wheat., their absence did not prevent a decree, which, incidentally, went against the suing tenant in common on the basis of his failure of title.
We find nothing in the New Jersey law to indicate that the general rules, as set out above, would not prevail. We therefore hold that, in this case, the tenants in common not joined are not indispensable parties, for while they may be interested in the outcome of this action, their interests are not "joint" and would not be affected by the judgment herein; nor would their absence prevent complete justice as between the parties who are involved, the suit being for an aliquot share only. Whether the absent parties are "necessary" is not important, for they live either too far or too close, as already noted.
Moving on to the merits, the following facts form the background of this controversy. James Searing, the common ancestor, made three deeds to the Morris Canal and Banking Company dated January 11, 1930, March 28, 1833, and March 1, 1856. The Morris Canal and Banking Company was chartered by act of legislature in 1824, P.L. 1824, p. 158, entitled "An act to incorporate a company to form an artificial navigation between the Passaic and Delaware Rivers". The company was authorized to take and possess all such lands as might be necessary for its purposes but limited, under Section 27, to only those lands as were actually necessary for the erection and use of the canal for the purpose of navigation only. Section 25 of the Act provided that "The said canal when completed, shall forever thereafter, be esteemed a public highway, free for the transportation of any goods, commodities or produce whatsoever, on payment of the tolls * * *".
The deed of 1830 is set out in the margin hereof.*fn1 The deed of 1833, purported to grant to the Canal Company a plot of land also situated in the Township of Newark, "being the land covered by the weight lock", which was described by courses and distances, but admittedly one call thereof was missing. There was no reservation or limitation whatsoever, but the grant was forever. The deed of 1856, executed by both James Searing and his wife, recited that the grantors "* * * Have granted, bargained, sold aliened, remised, released, and forever Quit-Claimed, and by these presents does grant, bargain, sell, alien remise, release, and forever Quit-Claim, unto * * *" the Morris Canal and Banking Company, land which was therein described fully and completely by metes and bounds, courses and distances. The description concluded with the statement "Reserving and excepting so much of Warren Street as is included in the above description - and the above description embraces two tracts heretofore conveyed by the said James Searing to the (Morris Canal and Banking Company) by deeds dated January 11, 1830 and March 28, 1833 - The above tract of land is the same now occupied by said Mirris Canal and is hereby conveyed Subject to the conditions that if the said Canal shall be changed in its location, and the said land shall cease to be used for a canal then the said land shall revert to said James Searing his heirs or assigns." The habendum clause recited, "To have and to hold all and singular the above described tract or lot of land and premises with the appurtenances, unto the said (Morris Canal and Banking Company) their successors and Assigns, to the proper use, benefit and behoof of the said (Morris Canal and Banking Company), their successors and Assigns forever."
Subsequently, the Morris Canal was abandoned as a canal, the property acquired by the State of New Jersey; the City of Newark, one of the appellees, obtained the land here in controversy and the land has since been used for an electric railway, operated by the other appellee, the Public Service Coordinated Transport, Inc., a New Jersey corporation. All this was accomplished pursuant to various enabling acts of the New Jersey legislature.*fn2
The contentions of the appellants are that the deeds of 1830 and 1833 are invalid, the former because the description of the property sought to be conveyed is too vague and indefinite, and the latter because the fourth call is missing thereby making it impossible to effect a close; further that extrinsic evidence is inadmissable in either instance. Finally, it is urged that the deed of 1856 is valid and operative, that it, as well as the 1830 deed, expressly created an estate in fee subject to a limitation, namely, the abandonment of the canal, and that the canal having been ...