Fitch v. Baldwin — 17 Johns. 161

Majority

p. 136

*Fitch and others, executors of Fitch, against Baldwin.

Headnote

tends under she Saratoga^ pat-fondant, claim-!an<ijlhed'vihe Kca jaderosser-as^pat ení^exe-io tiCpíaimift; hnd^to S be claimed title,

brUiu by'the plaintiff 'for a covenant0* *of seisin in the defendant-s deed} that the land, wUhinthe s'rcf toga patent, Se*’ defendant was not seised, Se’pWatiff'by accepting ’ tite conveyance ant was estop- teÍ<f*at (⅜ lands’ released & «Sn'iCiif aderosseras pá-tent, or that the nofíícd "of the land in consequence of tne the plaintiff toí«rtllCpatent" wfiich was the

of seisin extends eSing V^a third person, and which might defeat the estate granted the defendant.

If there had been fraud on the part of the defendant, and the plaintiff had, by undue means, and in ignorance of his rights, been induced to lake a deed of his own land from the defendant, it seems that he might have relief in Chancery.

was an action on a covenant of seisin in a deed, tried at the Saratoga circuit, in June, ISIS, before Mr. Justice Van Jsfess. The deed, from the defendant to the testator, was dated April 23, 1814. It was for all that certain tract, piece, or Parce^ Qf land, situate, &c., or lots No. 10 and No. ll, in the ninth allotment of the Kayaderosseras patent, beginning, &c. The defendant pleaded that he was seised, &.C., in the premises so conveyed, and had good right to convey, &c., and specially set forth his title under the Kayaderosseras patent, and averred, that the premises were within that patent ; to whieh the plaintiff replied and took issue. At the trial, the defendant, in support of his plea, gave in evidence the Kay- ' a^erosseras patent, dated the 2d of November, 1703, the easterly line of which is bounded by the westerly line of Saratoga patent; a deed of partition, and divers mesne conveyances; and, to conclude the plaintiff from denying the defendant’s ^e, and to estop him from denying that the land in question was part of lots 10 and 11, in the ninth allotment of the erosseras patent, offered in evidence a writing under the hands and seals of the defendant and the testator, dated 21st of May, 1812, by which it was agreed between them, that the defendant should withdraw the suit which he had commenced in the Supreme Court against the testator for land which he claimed to hold m the town ot Saratoga, and that each party should pay his own costs; and the testator released to the defendant all the land in lots No. 10 and 11, *n the ninth allotment of the Kayaderosseras patent, that is not included in the testator’s deed from Jonathan Lawrence, recorded in #the office of the clerk of Saratoga, and a survey was to be made, exactly according to the boundaries of the said deed, by Caleb Ellis, as soon as the parties would procure him to do it. The defendant, also, offered to prove that, soon af|er ⅛⅛ agreement, in the lifetime of the testator. Caleb Ellis, with the defendant, surveyed the lines oí the land occupied the testator under the deed from Lawrence; and that according; to such survey, the lands so occupied fell within the patent of Kayaderosseras, locating that patent as now claimed by the defendant, and as it is laid down oil the map.

This evidence, the agreement and proof of survey being objected to by the plaintiff’s counsel^ was overruled by the * ‘t ^ Ju%e-

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The plaintiff then gave in evidence the letters patent for the tract of land, called the Saratoga patent, dated the 9th of October, 1708, to Peter Schuyler and others ; and the original map and partition of that patent, as surveyed and divided by John R. Bleecker, in 1750, by which it appeared, that the premises in question are within the west end of lot No. 25. of the grand division of the Saratoga patent. The plaintiff next gave in evidence a release in fee from Jonathan Lawrence, one of the proprietors of the Saratoga patent, to the testator, dated the 25th of January, 1798, for the consideration of 3,750 dollars, of lot No. 16., being part of lot No. 25. of the grand division of the Saratoga patent, containing 165 acres.

It was admitted, on the trial, that by the location of the Kayaderosseras patent, as laid down on the map of partition, the premises in question are included in that patent; that the patent of Saratoga laid down in the said map, is located, on the supposition, that in running the six miles west from the river at the first station, the line is to be run according to the windings and turnings of Anthony’s Kill; and that the first line west of the Saratoga patent, as laid down on that map, although extending west six miles, according to the windings and turnings of that creek, extends but four miles and a half from the river in a straight line. That, according to the location of the Saratoga patent by Bleecker in 1750, the premises in question are in that patent, and no part thereof within the patent of Kayaderosseras. That, *according to Bleecker’s location, the first line west extends six miles from the river on a straight line, and that the western line is, in all places, but six miles from the river, in some one direction, so that a right or perpendicular line from any part of the premises in question to the river, will reach within the six miles. That the creek called Anthony’s Kill does not extend six miles into the woods on a straight line. That the deed from Lawrence to Fitch, the testator, includes all the lands in the deed from the defendant to the testator, on which this suit is brought.

The jury found a verdict for the plaintiff for 1,819 dolíais and 56 cents, being the consideration money expressed in the deed, with interest, subject to the opinion of the court, on a case containing the facts above stated.

M’Kown, for the plaintiffs.

.411 the lands first purchased by the testator from /... were again purchased of the defendant, and he was thus seised under both patents. We admit, that if the defendant was seised at all it was under the Kayade-rosseras patent. The patent of Saratoga is the eldest, and its words of location must be first fulfilled. In the construction of the Hoosick patent, the court said, the lines were to run parallel with the creek, according to its windings, as far as practicable, so as, in no instance, to be nearer than two miles

p. 138

to the middle of the creek. (2 Johns. Cases, 37.) The same principle has been adopted in the construction of other patents. (2 Caines, 363. 367. 2 Johns. Rep. 297 . 5, Johns. Rep. 440. 9 Johns. Rep. 102 .)

Bleecker’s survey has been so often before the court that it is unnecessary to remark upon it. Parol evidence as to the survey was properly rejected.

The covenant of seisin, in this case, was broken as soon as it was made. ( 2 Johns. Rep. 1 . 4 Johns. Rep. 72 .)

Huntington and Van Vechten, contra.

The agreement between the testator and the defendant is of the nature, and must have the effect, of an award, which, though it does not operate as a conveyance, will conclude and estop the party. F., the testator, was, therefore, estopped to deny the defendant’s title. (Kyd on Awards, 55. 62.) Besides, it was *an agreement to settle a boundary line or survey. (2 Gaines’s Rep. 198, 199. 327. 9 Johns. Rep. 43 . 15 Johns. Rep. 197 . Doe v. Rosser, 3 East, 15. 4 Burr. 2209.)

Again ; the testator claimed under the Saratoga patent, and took a deed for the same premises from the defendant, who held under the Kayaderosseras patent. Is he not then estop-ped, as between the defendant and him, to say, that this land does not lie in the Kayaderosseras patent ? (Jackson, ex dem. Brown, v. Ayers, 14 Johns. Rep. 224 .)

Again; are the plaintiffs entitled to recover the full consideration and interest as damages, when the testator has never been evicted or disturbed ? The land lies in one or other of the patents, and he holds under both. This negatives the possibility of their ever being disturbed or evicted.

The effect of a recovery in an action on the covenant of seisin is to rescind the conveyance. ( 5 Johns. Rep. 53 .)

Henry, in reply.

The agreement between the testator and the defendant is not an award, nor in the nature of an award. It is a release of any land not comprised in L.’s deed ; and the agreement was merged in the deed. The cases, therefore, which have been cited, as to the effect of an award, have no application. The parties merely designated a person to do a certain act, or to make a survey of the land. This was not a submission.

The plaintiffs, having established a breach of the covenant of seisin, are entitled to recover damages to the amount of the consideration, with interest.

The plaintiffs have declared in covenant on a deed executed by the defendant to their testator, for lots in the Kayaderosseras patent, which deed contained a covenant of seisin.

The defendant has pleaded, that he was seised and had

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good right to grant the premises, and specially sets out his title. The replication takes issue on the plea. The defendant deduced a title to himself under the Kayaderosseras patent. The plaintiffs introduced in evidence the Saratoga patent, which is prior, in point of date, to that of Kayaderosseras, and deduced a title to their testator, by a deed from * Jonathan Lawrence, of the 25th of January, 1798, under that patent.

It appears that the deed from the defendant to the plaintiffs’ testator was made under an agreement between them, under their hands and seals, dated the 21st of May, 1813, whereby it was stipulated that Baldivin should withdraw a suit he had commenced against Fitch in this court, for lands w'hich Fitch claimed to hold in the town of Saratoga, each party to pay their own costs ; and Fitch released to Baldivin all the lands in lots No. 10 and 11. in the 9th allotment of the Kayaderos-seras patent, that were not included within the bounds of Fitch’s deed from Lawrence, and a survey was to be made, according to the boundaries of the said deed, by Caleb Ellis, as soon as the parties could procure him to do it. The case goes on to state the survey by Ellis, and the giving the deed by Baldwin, in pursuance thereof; but as we do not put the decision on that point, it is unnecessary further to consider it. Nor are we called upon to decide upon the construction of the Saratoga patent.

It is evident, that wdien the agreement of the 21st of May, 1813, was entered into, the lands granted by the deed declared on. were claimed by each of the parties : by the defendant under the Kayaderosseras patent, and by the plaintiffs under the Saratoga patent. We hold Fitch and his representatives estopped from alleging, that the lands granted did lie in the Kayaderosseras patent, or that Baldwin was not seised of them, in consequence of the prior seisin of Fitch under the Saratoga patent. The allegation, that Baldwin has broken his covenant of seisin, by reason that Fitch owned the property when he purchased it, is repugnant to the direct acknowledgment in the act of receiving a title, or taking a conveyance from Baldwin. Paying a valuable consideration and accepting a deed from Baldwin, restrains the bargainee from asserting that the bargainor W'as not seised of the premises, but that the bar-gainee was seised. The covenant of seisin extends only to guaranty the bargainee against any title existing in a third person, and which might defeat the estate granted.

The defendant is placed in an extraordinary situation. Fitch acquired all the title he had in the premises, and *which is admitted to be good, if they lie in the Kayaderosseras patent ; and yet, without having rescinded the contract of sale, and put Baldivin free to contest the question of conflicting boundary, the plaintiffs proceed upon a supposed want of title of which their testator was conusant. It never can be permitted to a person, to accept a deed with covenants of seisin, and

p. 140

then turn round upon his grantor, and allege that his covenant is broken, for that, at the time he accepted the deed, he himself was seised of the premises. If there had been fraud in case, and the plaintiffs could have shewn that the testator had been induced, by undue means, and in ignorance of hi.rights, to take a deed for his own land, there might be relief in a court of equity. In the case of Jackson, ex dem. Brown and others, v. Ayres, ( 14 Johns. Rep. 224 .) the defendant had entered into an agreement to purchase of one of the lessors the lands then in question, and a deed had been tendered and refused ; in an action of ejectment brought by Brown, the defendant offered to prove that one Doblcins had possession of the premises 40 years before the trial, and that the defendant was in possession, claiming title, and had a deed from the heirs of Dobkins. We held, that the defendant was estopped, admitting that he entered under Dobkins, and had a deed from his heirs at the time he agreed to purchase from Brown, unless he was in some way deceived or imposed upon in making such agreement. In the present case, the agreement was consummated by a deed ; and upon every principle the plaintiffs are estopped.

Judgment for the defendant.