Jackson ex dem. Rogers v. Clark — 7 Johns. 217

Majority

p. 217

Jackson ex dem. Rogers and Gardinier, against Clark and another.

NEW-YORK.

Nov. 1810.

Headnote

if in the deserip~ tion of an esLate in a deed, there are particulars ~nffieiontly ascertained to designate the thing intended to be granted, the addition of circum. Stances uirise or mistaken will not frustrate the deed. But where the description of the estate intended to be conveyed includes several l)articulars, all of which are necessary to aseertaits the estate to be conveyed, no estate will l)asS, except such as will agree with every particular of the description. Where the description of the premises in a deed were, all, &e. "lot No. 1. of fire smaller lots into which lot No. 3. of the subdivision pf lot No. It). in the 12th general allotment of the patent K" &c. and there was a mistake in inserting the 1~ith instead of 21st general allotsnent, it was held, that the premises which were claimed to be in tire `21st general allotment, - passed by the deqd; and if tire words " with the dwelling-house thereon," be inserted in the deScription, when, in fact, there was no dwelling-house on the premises claimed under the riced, it is merely a false circumstance which does not control the rest Qf the descriptions nor defeat the grant. The notice of a sale of mortgaged premises, pursuant to a power under the statute, sony be postponed to a further day, provided notice of such postponement be also inserted in the gazette, and put up on tire court-house door; and it seems, it is not necessary to give a further notice of six months, of such postponement. But where a notice of a sale was given in February, to take place on the 12th .thzçust following, winch was duly published, &e. and in June a notice was inserted in th gazette, that the sale was postponed to tire 3d of September, ivhsch irolice of the postponeni lit was not put at tire court-house door, and tire sale took place on the 12th 4ugust, pru~ntaut to the origins~. notice; it was held, tinbt the ~ ~~ss irregular rind

THIS was an action of ejectnlent, and was tried at the Saratoga circuit, in 1810, before Mr. Justice Van Ncs~.

p. 218

The plaintiff claimed title to lot No. 1. of the subdi-? . . - ; - . , .... c . vision, or lot No. 3. m the division or great lot No. 10. in the 21st allotment of the patent of Kayaderosseras, containing 155 acres, situate in the town of Providence, in the county of Saratoga.

At the trial, the plaintiff produced a mortgage in fee, from William Clark to Rogers, one of the lessors, dated the 4th September, 1797, to secure the payment of 50 dollars, on or before the 1st September, 1801. The mortgaged premises were described as being known and distinguished by “lot N°* of the smaller lots into which lot Nó. 3. of the subdivision of lot No. 10. in the 12th general allotment of the patent of Kayaderosseras is subdivided, beginning at "a hemlock tree, marked No, 2. and 3. being the north-west corner of lot N°* 2. of the said subdivision, and standing on the easterly hound pf lot No. 9. of the said allotment,” &c. giving the other courses and distances, mentioning “ a stake and heap of stones,” the south-west corner of lot No. 4. of the smaller lots, as a monument, and “ a stake and heap of stones, being the north-west corner of lot. No. 2. of the said smaller lots,” as another monument or bounda-, ry, containing 155 acres, with a dwelling-house thereon, The mortgage contained the usual power of sale, and. was duly acknowledged and registered. The sale of the mortgaged premises, under the power, was advertised in the Albany. Gazette, for six months, which expired the 7th August, 1806. The advertisement was dated the 17th February, 1806. A postponement was made of the time of sale; and the following notice was subjoined and continued with the advertisement until the 7th August, 1806, when both were discontinued: “ Note, the sale pf the above property is postponed to Wednesday, the 3d September next. June 16, 1806. James RogersP A sale was made of the premises, pursuant to the advertisement and notice, on the 12th August, and Gar-dimer, the other lessor, became the purchaser. The

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first advertisement was regularly put up at the courthouse door of the county, during six months, but the notiee of the postponement and continuance were not aExed there.

The plaintiff gave in evidence a deed from the mortgagee to Gardinier, the other lessor, dated the 16th January, 1809, for the consideration of 103 dollars, which recited the mortgage, advertisement and sale.

A witness testified, that the boundaries expressed in the mortgage comprehended the lot No. 1. but that the 12th allotment of Kayaderosseras patent lies in the county of Montgomery, and that there were no buildings on the premises in 1797. The scrivener who drew the deed, testified, that he inserted the words “ with the dwelling thereon,” without knowing whether there was a house on the premises or not. The defendants were proved to be in the possession of the premises. The counsel for the defendants moved for a nonsuit, on the ground that the directions of the act concerning mortgages, had not been pursued- in the advertisement and sale of the premises ; but the motion was overruled.

• The defendants proved, that on the 29th April, 1797, the premises in question were conveyed in fee, by Jonathan Hagadum to Rogers, the lessor, and that Rogers, on the 4th September, 1797, conveyed the premises in fee to William Clark, who died intestate, about the 1st March, 1798. Administration was granted by the surrogate of Saratoga, on the estate of Clark to John Taylor; and on the 13th October, 1800, an order was made by the surrogate for the sale of all the real estate of Clark in the county of Saratoga ; and a deed from the administrator to Nathan Harman, on a sale, pursuant to this order, dated the 6th December, 1800, was produced. Harman conveyed the premises by deed, dated 1st February, 1801, to Elijah Olmstead, who, on the 1st April, 1802, conveyed them to John Taylor, who, on the 19th-

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October, 1805, conveyed the same premises to the de* fondants.

A witness testified that there was a lot No. * 10. in the 12th allotment of Kayaderosseras patent, containing 100 acres, but that it had never been subdivided.

Payment of the mortgage to Rogers, had been demanded of the administrator of Clark, (without showing the mortgage,) previous to the advertisement and sale; but the administrator refused payment, alleging that the mortgage did not cover the premises in question.

A verdict was taken for the plaintiff, subject to the opinion of the court, on a case containing the above facts,, with liberty to either party to turn the same into a spe-' cial verdict.

Van Vechten, for the plaintiff.

The plaintiff may claim, either under the mortgagee, or under the purchaser at the sale made by virtue of the power contained in the mortgage. The defendants claim to hold under the mortgagor. The premises are described as in the 12th allotment, but in fact are in the 21st allotment. It is a cardinal rule in the construction of deeds, that they are to be so construed, if possible, that the deed may take effect, according to the intent of the parties. If the designation of the allotment is incompatible with the rest of the description, it ought to be rejected, when there is sufficient to ascertain the land intended to be conveyed. There was a lot No. 10. in the 12th allotment, but it never had been subdivided, so that it could not comprise a lot No. 1. in lot No. 3. of the subdivision of lot No. 10. The description by courses and bounds is clear and precise j and there are fixed monuments, as, stakes and heaps of stones, to mark the situation. It is proved that there was not, in fact, any house on the premises intended to be conveyed; and the mortgage was executed on the same day the premises were conveyed

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"to the mortgagor. Shall he or the persons claiming under him be allowed to make such an objection ?

The rule on this subject is well laid down in the case of Worthington and others v. Hylyer and others, (4 Tyng’s Mass. Rep. 196.) in the supreme court of Massaehusetts, which is very analogous to the present case. The court said “ if the description be sufficient to ascertain the estate intended to be conveyed, although the estate will not agree to some of the description, yet it shall pass by the conveyance, that the intent of the parties may be effected.” Here lot No. 1. in lot No. 3. of the subdivision of lot No. 10. corresponding with the courses and distances and fixed monuments, are sufficiently certain, though the number of the allotment is wrong.

Any trifling inaccuracy in the description of the premises will not invalidate the notice. There would have been no mistake in this case as to the sale. The administrator had notice of the mortgage, for it was recorded ; and it was proved that actual notice of the mortgage was given to him.

Taylor, contra.

The description of the estate should be so certain, that by the terms of it the premises may be designated. The situation of the premises is material. Here no town or county is mentioned, which would be decisive of the situation. The number of the allotment, then, is the controlling circumstance in this description. There may be lots of the same numbers, containing the same quantity of acres, with similar courses and distances in the 12th and 21st allotments.

There is no ambiguity on the face of the deed, and it is not to be explained by parol evidence.^[3] If a man grant his manor of Dale in Dale, and part of the manor extends into Sale, no part lying in Sale will pass by the deed.^[2] Neither the number of acres nor the bound aides, or courses and distances, form a controlling circum

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stance. If a man grant all his land in A., all the land irr A. will pass, be it more or less, and however incorrectIy the boundaries may be stated.

If the premises are to be considered-in the 21st allotment, the description of them in the mortgage will not be notice to a purchaser who examines the record. A purchaser would look to the number of the lot, and the allotment, not to the particular bounds or courses and distances. But what evidence is there that the premises were in the 21st allotment? Mere similarity of description does not make it the same ; nor is it made out by the correspondence of the date with that' of the Meed from Rogers.

Again, a dwelling-house is mentioned as parcel of the premises; and it is proved that there was no dwelling-house on the premises until 1805. The description in the deed from Rogers does not correspond exactly with the description in the mortgage. A description should be so far exact; as that according to the literal meaning of the terms, the 'premises in question may be included.

Again, the action of ejectment is to try the title of the lessor of the plaintiff; and if demises are .laid from-several lessors, and the titles of the several lessors are incompatible with each other, the plaintiff ought to be held to the title relied on at the trial. The plaintiff relied on the demise of Gardinier; and if a title is shown ' in him, there can be none in Rogers; for the two are irreconcilable with each other. ' Having expressly claimed to recover on the demise of Gardinier, the plaintiff is excluded from setting up a claim under the demise of Rogers.

Again, the deed from Rogers recited the mortgage, advertisement and sale; he is, therefore, bound by that recital, and cannot allege that the title was different.^[3] Then, as to the claim under Gardinier. The plaintiff has not shown sufficient to entitle him to a recovery on this demise. There was no notice of the time of the ac

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iual sale, put up at the door of the court-house in the 7 r 1 , county, as is required by the statute. The only notice put up was of a sale to take place on the 12th August. Besides, six months’ notice of the actual sale was not published in the gazette. In June, the sale was put off from the 12th August to the 3d September; and there should have been a new notice. The first given in February, of a sale in August, expired the 7th August, and was not continued afterwards; and the sale was actually made the 12th August, after the entire discontinuance of the original advertisement and notice.

Again, it does not appear that the power to sell was recorded, pursuant to the statute, before the sale was made, and the conveyance executed.

The postponement of the sale was also made without the consent of the defendant, and did not specify the place or hour of sale. I contend that where a sale is postponed, there must be six months’ notice of such postponement.

The rules which govern the construction of grants have been settled with the greatest wisdom and accuracy. The following principles will govern the construction of this deed. 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 quam, pereat. 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; as in Blague v. Gould, (Cro. Car. 447.473.) the-re was a devise of a house, called the corner house in Andover, in the tenure of B. and H., whereas it was in the tenure of B. and N., the devisor having a house thereto near adjoining in the tenure of H. and it was held, that the corner house in the tenure of B. and N. passed, for that the devise sufficiently as

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certained the thing, by the words “ corner house;” and the addition of the tenure was surplusage. But when the description of the estate intended to be conveyed includes several particulars, all of which are necessary to ascertain the estate to be conveyed, no estate will pass, except such as will agree to every description. (4 Tyng’s Mass. Rep. 205. 3 Atk. 9. Dyer, 50.) Thus,if a man grant all his estate in his own occupation in the town of W. no estate can pass except what is in his own occupation, and is also situate in that town.

Testing the present case by these rules, the deed is operative, and will pass the lot in question, though it does not lie in the twelfth general allotment of the patent ; the description of the premises by lot No. 1. of the smaller lots into which lot No. 3. of the subdivision of lot No. 10. had been divided, sufficiently designates the lot intended to be granted, and the addition of the general allotment, which is unquestionably the addition of a false or mistaken circumstance, cannot vitiate what was before certain, and frustrate the grant. In addition to the certainty already mentioned, the courses and distances of the lot for which the plaintiff sues, precisely correspond with those given by the deed, and a hemlock tree marked 2. and 3. and rec.ognised in the deed as the. north-west corner of lot No.-2., and as standing in the; easterly bounds of lot No. 9. of the said allotment, is in fact thus situated; and also two monuments of stakes and stones, and the quantity given by the deed, are all found to concur with respect to the lot in question. It appears from the evidence, that there was a lot No. 10. in the twelfth allotment of the Kayaderosseras patent, but that it never had been subdivided, and consequently it cannot be that the lot in question lies in that general allotment. It does riot appear, and however the fact may be, we cannot travel out of the case, that there is any other general allotment which has been subdivided in such manner as to correspond >vith the descriptiqn in

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the deed, in all but the general allotment. The insertion of the words “ with a dwelling-house thereon,” appears also to have been a mistake of the scrivener; but admitting that parol evidence coul(d not be received to show the mistake, it was, at most, a false circumstance, and cannot control the other description in thé deed.

As to the other point, I can perceive no objection to the postponement of a sale under a mortgage, on the day and at the place of sale, provided there is the same notice given which the act requires in the first instance ; I mean with respect to the publication in the paper, and the notice on the door of the court house. The six months’ notice is not solely for the purpose of giving notoriety as to the time and place of sale; it was intended to give the mortgagor, in addition to that, an opportunity to raise the money. In analogy to the constant practice of sheriffs’ postponing sales, without giving the six weeks’ notice at first required, and which has not been questioned, I should say that a postponement with the restrictions I have mentioned, might be made.

But in this case it is admitted that the sale was made on the 12th of August, 1806, the day first appointed in the notice. On the 16th of June, 1806, a postpone., ment underneath the original notice was begun to be published in the newspaper, and continued until the 7th of August, after which both were omitted.

The postponement was ■ in these words : “ Note, the sale of the above property is postponed to Wednesday, the 3d day of September next. James Rogers.” Of this postponement, no notice was given on the door of the court house, and it was so far disregarded, that the sale took place according to the original notice. Whether there could be a postponement before the day of sale, unless upon a six months’ notice, as the act directs, is one question; but it is a different question»

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whether, after a public notice of a postponement by the mortgagee, he could proceed to sell at the time first appointed, disregarding wholly the postponement. If this was' a sale by a sheriff, the law would protect the purchaser, and hold the sale valid; but in case of an insufficient notice, it would punish the officer. In this case, the regularity of the sale is to be made out as a part of the purchaser’s title, and if irregular, he takes nothing by his deed. In my opinion, the sale is irregular and void; the mortgagee, after publicly postponing the sale, which was a thing wholly under his control, was bound by it, and could not so far disregard it, as to proceed on the original notice. If the contrary position should be upheld, it would enable mortgagees to commit frauds, by selling, after they .had, by their own acts, lulled the mortgagor into security.

For these reasons, I am of opinion, 1. that the premises did pass by the mortgage ; and, 2. that the sale Under it is net valid.

Judgment for the plaintiff.