Jackson ex dem. Ostrander v. Hasbrouck — 3 Johns. 331

Majority

p. 331

Jackson, ex dem. Ostrander and Ostrander, against Hasbrouck.

ALBANY,

August, 1808.

Headnote

w*ler.e the „ proprietors ot a tract of land m’iw; agreeably to a survey thereof made for that their^request, and released to deed,°their vl spec tive shares, according to the map and possessiorT^fterwards was taken and held agreeably to a£oveS20pear°r it was held, holding^ under the proprietors, were concluded bysuchsury®? ^though it should apsequent survey 1801> tliat there was a mistake in the ^¡iH^'such011 partition was ieas it should b,e Pr°ved that the proprietors had, after-to^correct the mistake, and alter the boondary lines. The partition deed operates as an estoppel, as to the parties, and all persons claiming under them.

THIS was an action of ejectment, for lands in the town of Plattekill, in the county of Ulster. The cause was tried before Mr. Justice Spencer, at the Ulster circuit, in September, 1807.

The lessors ot the plaintiff deduced a regular title from the year 1752, to the north part of the lot No. 1. in the patent, known by the name of Bradley £sf Jevou’s patent, The lands in the patent, as appeared by the partition deeds, were divided in 1747, by the then proprietors, on . an actual survey made at their request, by John Eltinge, a surveyor. Abraham Hasbrouck, the father of the defendant, and under whom the defendant claims, was a . , , , . , , proprietor at the time, and had released, according to the said survey and partition, all his right to lot No. 1. in the north bounds of the patent, to Van Horne, under whom the lessors claimed. This release, a record of which was read in evidence, recited 'the agreement of the . , . . propnetors to make a partition, according to the survey of Eltinge, and after reciting the partition and survey, it referred to the map or chart of survey, made by Eltinge, and particularly described the bounds of the lot, and the courses and. distances, beginning at the north-east corner . of lands granted to William Huddlestone. The plaintiff then produced evidence which established the north-east corner of Huddlestone’s patent; and also a map and survey of lot No. 1. made by Charles Clinton, surveyor, according to the courses and distances given in the survey ° of Eltinge, by which the boundaries, were different from that survey, and the premises in dispute, arising on these two surveys, were distinguished on a map, and submitted . ° to the inspection of the court.

p. 332

The defendant derived his title from Abraham jHas* ftroucj^ to ¡anc[g granted to Bradley and Jamieson, sub-: sequent to the grant to Bradley and Jevou, and insisted that the premises were within the patent to Bradley and Jamieson, adjoining the north bounds of lot No. 1. and the north bounds of the patent to Bradley and Jevou, and that the adverse possession of the defendant barred the plaintiff’s right of recovery. In order to show that the' premises did not lie in the patent to Bradley and Jevou, the defendant produced a survey made by Johannes Bruyn, in 1801. Bruyn and Clinton, the surveyors, were both examined as witnesses ; but their testimony could not be understood, without a reference to the maps, and, in regard to the point decided by the court, it is unnecessary to state the evidence further.

The judge, in his charge to the jury, observed, that they were not to, inquire into any mistake that might have been made by Eltinge, in his survey and partition, or as to the bounds of the patent to Bradley and Jevou ; that the parties to the partition deed, and all persons claiming under them, were concluded by the deed, and that the' bounds of lot No. 1. as described in that deed, were to be taken as the true bounds thereof, unless altered by some subsequent act of the parties claiming under the partition deed ; that the witnesses did not prove that there had been any line settled between the parties interested, subsequent to the survey of Eltinge; that the evidence respecting Scuffs line, and the old marked trees, was sufficient to establish that line as the northern boundary of lot No. 1. and that the lessors were entitled to recover to that line, and to Scutt’s possession, which appeared to be according to the partition deed.

The jury, accordingly, found a verdict for the plaintiff.

A motion was made, in behalf of the defendant, to set aside the verdict, as against evidence, and because of the ■ misdirection of the judge.

Fisk, for the plaintiff.

E. Williams, for the defendant.

delivered the opinion of the court. In this cause, the lessors of the plaintiff deduced a title under a deed given to Van Horne, in virtue of a partition of a tract of land comprehended in a patent granted to Bradley and Jevou, made in the year 1747, by the then prietors, of whom Abraham Hasbrouck, the father of the defendant, and under whom he claims, was one, who, by that partition deed, released, according to a survey then made at the instance of the proprietors, by one John Eltinge, and on which the partition was founded, all his right in lot No. 1. in that patent.

The defendant derived his title to the premises from Abraham Hasbrouck, as lying within the boundaries of an adjoining patent, granted to Bradley and Jamieson, subsequent to the patent of Bradley and Jevou, and claimed the premises on the ground of a mistake made in the original survey of John Eltinge. Thus, it appears, that the lessors of the plaintiff and the defendant both claim under separate persons, parties to this partition ’ deed.

The first inquiry, therefore, will be, whether it was competent for the legal representatives of Abraham Hasbrouck to controvert the northern line of lot No. 1. in the survey by Eltinge of the patent to Bradley and Jevou, -by setting up a title under the patent to Bradley and ' Jamieson.

By the release of partition between the proprietors, it will appear, from the recital, that they agreed to make ■ a division agreeably, to the survey of Eltinge. This being a deed, under their hands and seals, must, as between the parties to this instrument, be a complete establishment of the line run by that survey, so that the inquiry for the jury, under those circumstances, on the trial of this cause, could only be, whether Eltinge, by his survey, comprehended the premises in question, within the boundaries of lot No. 1. This survey was, by the judge

p. 334

before whom the cause was tried, properly considered as 0pera|;ing as an estoppel against the defendant, and con-eluded him from controverting the northern line of Iqt ^°* on the ground of a mistake in that survey, alleged to have been discovered by the other survey, made in 1801. Admitting even, that a mistake was made by El tinge, in his survey, yet as the proprietors by the deed, have recognised the lines run by him, and made partition accordingly, and as the defendant claims under one of them, he cannot now gainsay an' act thus deliberately assented to,, and subscribed by him; nor can this mistake be rectified, unless done by a subsequent agreement of the parties.

The propriety of the rule of law, whereby parties or privies are not allowed to controvert facts admitted by their solemn deed, appears in this case. The mistake was made in the survey of another lot, containing ten: chains too much; so that the loss occasioned by this mistake would exclusively fall on the proprietors of lot No. 1. and thus create an inequality in the partition.

An attempt was made to prove an agreement as to the northern line of this lot, but instead of an abandonment of the possession of the lands lying between the lines of Bruyn and Eltinge, the witness said that he considered the land to be his, up to a fence, standing on a line called Sctetfs line, confessedly south of Eltingé’.s line, and as far north as the lessors of the plaintiff recovered on the trial; that he never gave it up, but meant some day to try the title to it, notwithstanding' the removal of the fence by Abraham Hasbrouck; and that one year subsequent to such removal, he took the avails of the land; so that, in fact, no evidence was introduced of an alteration by agreement, in relation to the lines of No. 1. or the northern line of the patent, as run by Eltinge. This line was recognised as the true boundary, by the partition deed between the proprietors, has been so generally received, and possession of the premises in question held for upwards of twenty years under it, and ought not now to be disturbed.

p. 335

The case of Skipwith v. Green, (1 Str. 610.) does not support the principle contended for by the defendant’s counsel, but establishes, that with respect to every essential part of the deed, the parties claiming under it are estopped from controverting it.

The court are of opinion, that the defendant must take nothing by his motion.

Thompson, J. not having heard the argument in the eau.se, gave no opinion.

Rule refused.