Majority
p. 124Jackson, ex dem. Craigie, against Wilkinson.
Headnote
Where, in a ⅛ a well ascertain-beginning, that ""d* go',e™’ to be Confined 1 ri ⅞<b wSSi «^boundaries given in the deed.Where the premises conveyed in a deed from M. to C., were described as follows: u to be admeasured according to the following bounds and lines, to wit, beginning at the south-west comer of a tract of land of, &c., granted to W, and others, &c, 5 thence, extending east, along the southern boundary of the said tract, six miles; thence southerly, so far as by lines drawn from those two points, parallel to the eastern and western boundaries of the said tract of W^&c. wil! include 33,750 acres of land:” And, by a prior grant from M. to others, he had cut off two miles of his land east from the south-west corner of the tract mentioned, so as to narrow the base to four vales : Held, that the hue could not be extended so far south, upon other land granted by M. to ()., so as to give the quantity of acres intended to be conveyed j though the deed to O. described the premises thereby granted, as “ beginning at the south-west corner of a cert tin tract of land of 33,750 acres, granted, or to be granted, bv M. to C.”
THIS was an action of ejectment, tried at the Genesee circuit, in June, 1818, before the late chief justice, when a#ver-diet was taken for the defendant, subject to the opinion of the court on a case; and it was agreed between the attorneys of the parties, that if the court should be of opinion that the phdntiff ought to recover, that the postea should be made up accordingly, and a judgment be entered thereon for him; otherwise, judgment was to be entered for the defendant,
The case stated, that Robert Morris was the common source
p. 125
of title to both parties. On The 6th of April, 1791, Robert Morris, and his wife, executed a deed to the lessor of the plaintiff', reciting a certain agreement, dated the 5th of August, 1795, between the parties, whereby R. 31., in consideration of five shillings, and of the further sum of 12,234/. 7s. 6d. lawful money of the state of New- York, to be paid by the said A. C., covenanted to convey to A. C., free from all incumbrances, on or before the 1st of January, 1796, the tract of land afterwards described, &c. That, A. C. having fulfilled his part of the agreement, dz,c., therefore, the said R. M., in consideration of 12,234/. 7s. 6d. lawful money of the state of New-York, (fee., granted, bargained, sold, <fec. to the said A. C., his heirs and assigns, “ all that tract, piece, or parcel of land, situate, lying, and being in Ontario county, in the state of New-York, being part of the lands ceded by the state of New- York to the state of 3Iassachusetts, and which, by divers legislative acts of the state of Massachusetts, and divers good conveyances, and assurances duly had, made and executed under the said acts, are now vested in the said Robert Morris, and to be admeas-ured according to the following bounds and lines, to wit: Beginning at a south-west corner of a certain tract of land of one hundred thousand acres, granted to the said Andrew-Crai-gie, James Watson and James Greenleaf, by indenture dated the 18th of February, 1192; thence extending east, along the southern boundary of the said tract, six miles ; thence southerly, so far as by lines drawn from those two points, parallel to the eastern and western boundaries of the said one hundred thousand acre tract, will include the quantity of thirty-three thousand, seven hundred and fifty acres of land (except out of the said lines any part of the land known by the name of the Genesee flats ;) to have and to hold, &c. The *deed contained covenants of seisin, warranty, and for further assurance, <fec. The plaintiff, also, gave in evidence a deed from Robert Morris and hi* wife, to Herman Le Roy, John Linklan, and Gerrit Boon, dated 27th of February, 1793, for one million of acres of land. The eastern boundary of this tract, called the transit line, was proved to run over and include two miles in width of the, western part of the tract conveyed to the lessor of the plaintiff, by which a deficiency is produced in the quantity intended to be granted to him, by the first mentioned deed, of 1 1,694 acres. The plaintiff further gave in evidence a deed from Robert Morris and his wife, to Watson, Cragie and Greenleaf, dated the 8th of February, 1792, whieh tract is the one referred to in the description of the premises conveyed to the lessor of the plaintiff, and the southern boundary of which is the north line of the tract of the lessor of the plaintiff.
A deed was also produced in evidence, from R. M. and his wife to Herman Le Roy and William Bayard, executed the 11th day of January, 1793, for the tract, called the triangle, the west boundary of which was proved tobe six miles east of the south
p. 126
west corner of the tract of Watson, Craigie and Greenleaf \ and four miles east of the north-west corner of the tract belonging to the lessor of the plaintiff, as now held by him, and to extend southerly about half’ wav along the eastern line of the last mentioned tract. The plaintiffs counsel alleged, that the other half of the eastern line of the tract of the lessor of the plaintiff Was equally hemmed in by prior conveyances, so as to prevent its extension eastward; and, to show that fact, gave in evidence certain mortgages from II. M. to Le Roy and others, dated the 28th of December, 1796, and the 31st of December, 1796, in pursuance of certain articles of agreement made the 28th of December, 1792, and the 20th of July, 1793, and a decree of the Court of Chancery, of the 4th of April, 1805. And it was alleged by the plaintiff’s counsel, that by-reason of these conveyances and proceedings, R. iff., at the time of the agreement to sell and convey to the lessor of the plaintiff, on the 1st of August, 1795, and at the time of the execution of the deed, pursuant to that agreement, on the 6th of April, 1797, was not seised of any lands on the eastern side *of the tract of the lessor of the plaintiff, by which the deficiency in the quantity intended to be conveyed to him could be supplied; and that, therefore, he was entitled to extend the lines so far south, on land owned by R. M., at the time of the contract and conveyance to the lessor of the plaintiff, as would make up the quantity.
The defendant gave in evidence a deed from R. M. to Samuel Ogden, dated the 1st of May, 1796, of a tract of land described as follows: “ All that tract, piece, or parcel of land, situate, &.C., and now vested in the said R. iff, to be admeas-ured according to the following boundaries, to wit, beginning at the south-west corner of a certain tract of land of thirty-three thousand seven hundred and fifty acres, granted, or to be granted, by the said R. Iff. to Andrew Craigie ; thence extending east, along the southern boundary of the said tract, six miles; thence southwardly, so for as, by lines to be run from those two points, parallel to the eastern and western boundaries of the said thirty-three thousand seven hundred and fifty acre grant, will include the quantity therein of fifty thousand acres ; except out of the said lines any part of the land known by the name of the Genesee flats.”
It was admitted, that if the lessor of the plaintiff is entitled to run south upon the tract conveyed to Samuel Ogden, in order to obtain the eleven thousand six hundred and ninety-four acres which is deficient, he will cover and include the premises in question, for which this action is brought. It was also admitted, that the defendant held under a regular conveyance from Samuel Ogden.
In order to show that R. M., at the time of his grant to Samuel Ogden, was seised of lands immediately south of the tract conveyed to Ogden, from which Ogden's quantity of 50,000
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acres might be supplied, if any deficiency was produced therein by the recovery of the plaintiff in this suit, the plaintiff gave in evidence a deed from R. M. to Garrit Cottringer, dated the 3d of May, 1196, for a tract of land “ to be admeasured according to the following bounds and lines, to wit, beginning at the south-west corner of a certain tract of land of 50,000 acres, granted by the said R. M. to Samuel Ogden; thence, extending east along the southern boundary of the said tract, six miles ; thence south with the #breadth of six miles, between lines to be run from the two extreme points of the aforesaid line, in a direction to form right lines with the east and west boundaries of the said fifty thousand acre tract, so far as that a line drawn from the points of intersection of the lines so to be run, will include within the said four lines, fifty thousand acres.” In the margin of which deed was a diagram, exhibiting the situation of the tracts as intended to be granted by R. M.
Henry, for the plaintiff,
1. As to the legal construction of the deed from Morris to Craigie, as between themselves: The exact situation and dimensions of the tract of land owned by Morris, on account of the wild state of that part of the country, were not known to the parties at the time. This is a circumstance which ought to be kept in view, in the construction of the grant.
All the authorities agree, that such a construction is to be given, as will carry the deed into effect according to the intent of the parties. In all contracts or deeds, the construction is to be favorable, and as near to the minds and apparent intention of the parties as may be. (Shep. T. 83. pi. 14. Plo'wd. 154. 160.) Every deed shall enure, as much as may be, according to the intention of the parties. (Finch’s Raw, 58.) Every agreement must have a reasonable construction which may be consistent with the intent of the parties. (2 Vent. 278.) The matter and substance of every grant being nothing but a declaration of the owner’s will to transfer a thing to another; if, by any words, his intention appears to pass the thing, a slight mistake or error in the description will not vitiate the grant. (Hob. 229. 3 Bac. Abr. 386. 393. Grants, (I.) 2 Roll. Abr. 56.) The law will not so construe an act as to work a wrong. (Co. Litt. 36. a. 42. a. 114 a. 183. b. 3 Aik. 136 . 5 Vin. Abr. 510. pi. 10. 1 Term Rep. 701. Cowp. 714. 4 Cruise’s Dig. tit. 32. ch. 23. s. 38. 7 Term Rep. 714.) Such, also, is the rule of the civil law; hi conventionibus contrahentium voluntas potius quam verba spectari placuit. (Dig. Lib. 50. 1. 219. Path. Trait, des Oblig. n. 91.) A particular in the description of land conveyed, manifestly inconsistent with the intention of the parties, may be rejected, if, without such particular, the land intended to be conveyed can be sufficiently ascertained. (Shep. Touchst. 247,248. Cro. Car. 447. 473. Hob. 171. 272. Dyer, 80. 5 East, 51.)
p. 128
The case of Massie v. Watts, (6 Cranch’s Rep. 148.) supports this principle of construction. The Supreme Court of the United States, in that case, in order to give effect to ^10 ‘nienb°a °f' the party, adopted a construction of the words of description, which his misapprehension of the true course of the Scioto river rendered necessary to circumscribe the land, by running five lines, instead of four. Chief Justice Marshall says, that “ if by any reasonable construction of an entry, it can be supported, the court will support it.” “ If the calls[1] of an entry do not fully describe the land, but furnish enough to enable the court to complete the location by the application of certain principles, they will complete it.” “ That, if a location have certain material calls sufficient to support it, and to describe the land, other calls, less material and incompatible with the essential calls of the entry, may be discarded.” (6 Crunch, 165.) In Jackson, ex dem. Rogers, v. Clark, ( 7 Johns. Rep. 217 .) Spencer, J., in delivering the opinion of the court, says, “ such construction is to be given as will give effect to the intention of the parties, if the words they employ will admit of it; ut res magis valeat quarn pe-reat. If there are certain particulars once sufficiently ascertained, which designate the thing intended to be granted, the addition of a circumstance, false or mistaken, will not frustrate the grant ” (Vide, also, Worthington v. Hyler, 4 Mass. Rep. 196 . 205. Jackson v. Myers, 388. 395. 2 Caines’s Rep. 367. 3 Caines’s Rep. 13. S. C. 1 Johns. Rep. 158 .) Now, to apply these principles to the present case, what are the material or essential calls in this case ?
A tract of land in Ontario county, being part of lands, &c. now vested in Robert Morris: It is to be admeasured from a base which forms the southern boundary of a tract of 100,000 acres, granted by M. to W. C. and G.: It is to extend southerly so far as, by lines to be drawn from the base, parallel to the eastern and western boundaries of the 100,000 acre tract, will include 33,750 acres of land. Quantity, *then, is the object, not precise and definite lines. The base is given, and the grant is to be so extended by lines, as to include the quantity. As between the grantor and grantee, the former having by a prior grant cut off two miles west, the latter is entitled to extend it two miles farther east, to give the base of six miles, so as to include the quantity. Parcel or not, is matter of description and matter of fact. The quantity of 33,750 acres of land the lessor of the plaintiff was to have, by the grant to him; and, as between the parties to the deed, it is clear, that if, by the prior deeds of the grantor, the lines could not extend west or east, they might be extended south, on the land then belonging to the grantor, so as to include the quantity intended to be conveyed.
p. 129
2. Then is the application of this principle of construction to be at all varied by the circumstance of Samuel Ogden coming in as a purchaser ? The deed to the lessor of the plaintiff, recites a previous contract for the conveyance of this land, made the 5th of August, 1795; Ogden, claiming under the same title, is bound by the notice of this fact, especially as the pb-culiar description in his deed apprised him of the recital in the deed to C., arid that his grant was to depend on the prior location of C.’s grant. A purchaser with notice is, in equity, bound to the same extent, and in the same manner, as the person of whom he purchased. (Sugden’s L. of V. 484. 1 Johns. Ch. R. p. 576, 577.)
Where a deed is made pursuant to prior articles of agreement which are recited in the deed, the recital, though not strictly a part of the deed, may yet be made use of to explain the intention of the parties. (Shep. T. 76. n. 2. 4 Cruise, 430. tit. 32. ch. 23. s. 38. Phillips’s L. of Ev. 356. Cuyler v. Bradt, 2 Caines’s Cases in Error, 326. 334.)
Again; this description in the deed is matter in pais, on which the jury should decide. (1 Term Rep. 701.) There ought, as was observed by Ch. J. Marshall, in Massie v. Watts, in regard to the peculiar circumstances of the country, to be a most liberal interpretation of the deed. Morris, the proprietor of this extensive wilderness, was obliged, for want of actual surveys, to give conjectural lines or boundaries to his grants.
*Van Vechten, contra.
The principles of law contained in the authorities cited are not denied. The difficulty lies in their application. In this deed, the place of beginning is fixed, and the lines are given, and it was the intention of the covenants in the deed, to protect the location according to those lines. Every deed is to be construed and located according to the description of the premises conveyed. Where the description is certain and not repugnant, it must be taken as it is ; the court has no authority to depart from it. It is true that the deed says that the grantee is to have 33,750 acres ; but he must have it within the lines given : he cannot go beyond them. Suppose the place of beginning to be a notorious natural boundary, must it not be taken for the purpose of location, though, in consequence of prior grants, the lines given may not comprehend the quantity of acres granted ? The diagram shows the intention of the parties as to the location. To allow the lessor of the plaintiff to push his grant south on 1he land of Ogden, and Ogden on to that of Cottringer, would be departing from the terms of description, from which only we are to collect the intention of the parties. The lessor of the plaintiff must rely on his own title ; he cannot look to the deeds of other parties to support his claim. The court are not to decide a question of equity or justice between Morris and Craigie; but what, in an action of ejectment, is the true lo
p. 130
cation of this grant, according to the legal construction, founded on established rules and principles of law'. C. has a right of action, on the covenants in his deed, against Morris or his heirs, to make good any deficiency in the land ; but his deed must be located according to the boundaries and lines given. The defendant is not bound by the recital in C.’s deed, which is dated subsequent to that of the defendant. The place of beginning agreed up.on by C. and M., is fixed and certain. The agreement in 1795, cannot control a deed given in 1797. The deed is evidence of the agreement of the parties at the time. If the court go beyond the terms of the description, they will, in fact, make a new agreement for the parties : for, it is admitted, that the south-west corner of the 100,000 acre tract is the true place of beginning. But it is said, that the description is matter in pais. True, where #the place of beginning is ambiguous or uncertain ; not so, where it is fixed and clear.
As to the case of Massie v. Watts, which has been relied upon by the counsel for the plaintiff; it was on the equity side of the Supreme Court of the United States. Besides, the court, in that case, say, that the material calls are to govern, or, in our language, the material parts of the description : that is, where there are any clear, fixed, and indisputable points or boundaries, they must be observed.
Henry, in reply.
Is there, in this case, that absolute certainty, those fixed objects or terms, which must control and govern the location? M. was indebted to C. 33,750 dollars, for which he agreed to convey to him 33,750 acres of land. Quantity was the object and intention of the parties ; and that intention is to govern, unless controlled by some fixed and immovable bounds. It is asked, what would be the construction, if a fixed natural object had been given as the place of beginning ? But, in this case, the place of beginning is a supposed artificial point, taken for the purpose of extending lines, altogether arbitrary and imaginary, so as to include a certain quantity of acres of land. Suppose the transit line had been run so as to cut off three miles from the supposed base, is the lessor to have only half the quantity granted to him ? Did not the court, in their construction of the patent of Kctyaderosseras, reject a lot, in order to fulfil the intent of the grantor ? Will they not, then, reject an impracticable place of beginning, in order to fulfil the intent ? The place of beginning was mentioned merely for the purpose of giving to the grantee, by an extension of lines, a certain quantity of land. If cut off from the south-west corner of the tract of 100,000 acres, the location must come as near as possible. Such is the doctrine in Pbwden. According to the argument of the counsel for the defendant, no description, whatever, in a deed, can ever be departed from, or the lines extended, to fulfil the most manifest intention of the parties. In the case of the
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Sacondaga patent, there was no concluding or closing line, yet this court supplied it, in order to fulfil the intent.
#The case of Massie v. Watts, it is true, was on the equity side of the court; but the court take into consideration the peculiar situation of the country, and they vary the lines to carry into effect the intention of the parties. If the court is to be so rigidly confined to the south-west corner of the 100,000 acre tract that they cannot vary from it, then there is no place of beginning, and the grant cannot be located at all. Yet it is admitted, by the other side, that it may be located in part, by beginning two miles farther east. The location is to extend “ southerly, so far as, by lines drawn, &c., will include 33,750 acres.” The lines are to be drawn parallel, and so far as to include the quantity mentioned. The east and west lines of the 100,000 acre tract were not to be continued ; but the possible diminution of the base mentioned, was contemplated by the grantor, and the lines were to be extended south, so far as to supply any deficiency which might arise from that circumstance. If the eastern and western lines were not to be rolled out, or extended south, so as to include the quantity, but were to be confined strictly, according to the words, why was not the length of these lines fixed at once ? There are, then, peculiar terms of description used in this deed, which show that the boundaries or lines were not immovably fixed; but were to be varied or extended, so as to carry the intention into effect.
But, it is said, the court cannot adopt the construction for which we contend, because, forsooth, there are personal covenants in the deed, to which the plaintiff may resort for damages. But if M. was insolvent, and now in court, might not C. say, “ you granted me 33,750 acres of land, for which you were paid ; you own land south sufficient to make up that quantity; and by your own act you have precluded me from taking a base of six miles, and am I now to be told to look to the covenants ?” Again ; if we look to the terms of description in the deed to Ogden, it is clear, that his deed cannot be located, until the deed to C. is first satisfied. The tract granted to him is to be admeasured, “beginning at the southwest corner of a certain tract of land of thirty-three thousand seven hundred and fifty acres, granted or to be granted by the said Robert Morris to Andrew Craigie,” &c. The location of O'x tract is then, by ^express terms, made dependant on the prior location of C.’s tract. In regard to the latter, O. stands precisely in the situation of Ml, and can have no better right, lie might, finding no interfering grant east, extend two miles farther in that direction, and so he has, in fact, done; M. intended to make all his grants bound by straight lines, and to exclude the Genesee flats.
Admitting that the recital is not evidence; still the substance of O.'s grant is made dependant on the grant to C. first to be
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located.. The lines given being parallel and defined or limited, M. could not object to their extension south, so as to fulfil the intention of the grant to C.; and O., so far coming in place of M., must be governed by the same construction as if the suit were against M.
The case admits that Robert Morris is the source of title to both parties. The lessor of the plaintiff claims title to the premises, under a deed from Morris, bearing date the 6th of April, 1797. It recites an agreement made between the parties on the 5th of August, 1795, whereby Morris covenanted to convey and assign to Craigie, his heirs and assigns, for ever, the tract and parcel of land described in the deed ; and it then grants to Craigie, a certain tract of land lying in the county of Ontario, &c. “ to be admeasured according to the following bounds and lines : beginning at the south-west corner of a certain tract of land of 100,000 acres, granted to Craigie, Watson and Greenleaf, on the ISth of February, 1792, thence extending east, along the southern boundary of said tract, six miles, thence southerly, so far as, by lines to be drawn from those two points, parallel to the eastern and western boundaries of the said 100,000 acre tract, will include therein the quantity of 33,750 acres of land.”
The case concedes, that the place of beginning of the tract, including the premises in question, is fixed and certain. The line, therefore, must be run from that point, according to the courses and distances, to ascertain the lands granted. The fact, that Morris’s anterior grant to Le Roy, Linklan and Boon, had divested him of the title to two miles in width of the land granted to Craigie, (which is the basis of the plaintiff’s claim to extend his grant on to the lands granted by Morris #to Ogden,) does not warrant a location upon other lands not authorized by the terms of the deed. The principle on which the location contended for rests, is, that the base given to Craigie, was six miles, and that the grantor had, by a prior grant, narrowed this one third, and that it is a grant of quantity founded on the six mile base, and that, therefore, the grantee has a right to his quantity upon any of the contiguous lands of the grantor. We cannot accede to this proposition, where there is a known and well ascertained place of beginning. In such case, the grant must be confined to the lands corresponding with the boundaries given in the deed. It would seem to be equitable, if Morris continued to own the adjoining land, that the grant should be satisfied, by being extended on his other lands, so that the grantee might have his complement; but even then, we much doubt, whether a court of law could afford the relief, in a case where there was no question as to the actual boundaries of the tract granted.
In the present case, it would operate inequitably, to permit the plaintiff to extend his grant upon lands held by a prior
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grant to Ogden. It is urged, that the deed to Ogden recites, or refers to the prior agreement made between Morris and Craigie; and were we to admit, that Ogden had read that contract, and fully understood it, he must have known how the tract agreed to be conveyed to Craigie was to begin, and what it was to include, and that it did not touch or interfere with the tract granted to him. .We are ignorant of any principle on which the boundaries of a deed can be rejected, when they are susceptible of a definite and certain location, on the ground, that the grantor did not own part of the land granted, but did own contiguous land. Here, the case is stronger against the plaintiff. The grantor, when he conveyed to Craigie, did not own the lands in question, and, therefore, there is no equity in the plaintiff’s claim.
Judgment for the defendant,[1]
(a) (a) Jackson, ex dem. Bond, v. Root, 18 Johns. Rep. 60 . Jackson, ex dem. Swain, v. Remsen, 18 Johns. Rep. 107 . Jackson, ex dem. M'Naughton, v. Loomis, 18 Johns. Rep. 81 . S. C. in error, 19 Johns. Rep. 449 . Jackson v. Widger, 7 Cowen, 723. Jackson v. Camp, 1 Cowen, 612. Newton v. Prior, 7 Wheaton s Rep. 10. 6 lb. 582. Jackson v. Moore, 6 Cowen, 706, and n. 720. 5 Cowen, 346. 7 Cowen 723. Jackson, ex dem. The People of the State of New-York, v. L. Wendell, 5 Wendells Rep. 142.