Frier v. Jackson ex dem. Van Allen — 8 Johns. 495

Majority

p. 495

Daniel Frier and Peter Cooper Plaintiff in error. against James Jackson ex dem. Johannis L. Van Allen and John J. Van Allen, Defendant in error.

Headnote

The death of pjXaifi; in “¡ectmen? he fore the trial, does not abate the suit.

A bill of exceptions, does not draw the whole matter into examination, but only the points to which it is taken, and the party must lay his finger on the points which arise either in admitting or refusing evidence, or matter of law, arising from a fact not denied, in which, he is overruled by the court.

The construction of a grant is matter of law; but its legal effect, deducible from its terms or matter subsequent, which by showing the sense of the parties, may authorize a larger or narrower construction, sons to include or exclude the premises in controversy, is a matter of fact for a jury only to decide.

The true construction of. De Bruy?i’s patent is a line from David's Ilook to the Saw-kill9 drawn between those two points, along the east shore of the Hudson’s river, to compose the western boundary; a line along the west bank of the Fish-lake, in its whole extent, the eastern boundary; and straight lines from the extremities of the Fish-lake, to the stations on She Hudson or David’s Hook and the Saw-kill, the northern and southern boundaries.

The patent to Maker and Flodder, in 1667, is not void, for uncertainty,

THE defendant in error brought an action of ejectment, m the supreme court, on the demise of Johannis L. Van Allen and John J. Van Allen, to recover of the plaintiffs

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in error, the possession of a grist-mill, saw-mill, and lands thereto adjoining, situate in the town of Kinder» _ J hook, in the county of Columbia.

The cause was tried at a circuit court held in and for the county of Columbia, in July, 1806, before his honour, Daniel D. Tompkins, Esq. then one of the justices of the supreme court, when a verdict was found for the plaintiff below, in- conformity to the opinion of the judge, as expressed in his charge to the jury. To this charge, the counsel for the defendants below took a bill of exceptions. Judgment having been rendered in the supreme court, on the verdict, the defendants below brought a Writ of error returnable to this court.

The plaintiff below derived title to his lessors, in a tract of land, granted by letters patent, to John Hendrixe DeBruyñ, dated the day of December, 1686, in the second year of the reign of King fames II. This patent, after reciting an Indian deed, dated in 1668, grants, as follows:

“ A certain piece or tract of land, lying on the east side of Hudson's river, or the river of Neto Albany, beginning from Davidson's creek, which- creek lies against Bear Island, called in the Indian tongue, Pahssapaen penock, and from said- creek, stretching southerly,, along the river to the Saw-kill of Frans Peterse Claver, the creek in the Indian tongue called Petteenock, stretching to the east, and- in the woods, to the first two lakes or in-waters, which are called by the Indian Hithook and Wawascewashook."

The plaintiff gave in evidence, 1. A deed from De Bruyn, the patentee, to Lawrence Van Allen, dated 23d September, 1707, in fee, for the consideration of 400 pounds.

2. The will of Lawrence Van Allen, dated 4th March, 1712-13, under the residuary clause of which, all his real estate (not before specially devised) was devised ter his nine children, as tenants in common, in fee, viz

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'Johannis, Evert, Peter, Stephanas, Luycas, and Jacobus Van Allen; Catharine, the wife of Malgert Malgertse Derpool; Janite, the wife of Lendert Phiipsie Co-nine; and Christiana, the wife of Johannis Van Deusen.

3. The will of Evert Van Allen, dated 16th j'eyt. 1719, devising all the right and title which he acquired under Ms father’s will, to his brother Luycas Van Allen-

4. A deed, in consideration of natural love and affection, from Johannis Van Deusen and his wife to Luycas Van Allen, for the ninth part of the estate devised by their father.

5. The plaintiff next prov ed that Luycas Van Allen, the son of Lazvrance, the elder, died prior to the revolutionary war, leaving two sons, Lazvrance and John, and that Lazvrance, the eldest, was now living.

6. A lease, bearing date the 24th of March, 1800, from Lazvrance and others, to the lessors of the plaintiff, for twenty-one years, to enable them to bring suits at law to recover the premises therein described, as fol* lows, to wit: “ A certain tract or tracts, piece or pieces of land, situate on both sides of the run of water, called Valletje’s Kill, together with the said run of water and lands thereby covered; and being parcel of a patent, eommonly called De Bruyrds patent, situate,” &c.

7. The will of Jacobus Van Allen, (the son of Lazv-' ranee the elder,) dated 14th of October, 1754, by which he devised all his real estate to his three sons, Lazvrance Johannis, and Abraham. Abraham died without issue ; his eldest brother, Lazvrance, was his heir at law. Johannis died, leaving John J. Van Allen, (one of the lessor? of the plaintiffs,) his eldest son and heir, who, as heir of his father, claimed one third of one ninth. The said lessor died in 1805, leaving a brother and sister, his heirs at law. Lazvrance, (the son of Jacobus, the son of Lazvrance Van Allen the elder,) by his will, bearing date the 19th of June, 1790, devised all his real estate to hr,

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widow, Jane Van Allen, who was a party to the lease, dated 24th of March, 1800.

The two shares of Evert and Catharine, the plaintiff contended, were united in Luycas their brother, with his ninth, and that these three ninths descended to Law-ranee, his eldest son, who, in March, 1800, made the lease, for the purpose of bringing this suit. The lessors claimed these three ninths, together with one ninth, the original share of Jacobus, (the son of Lawranee the elder.) This last-mentioned ninth, they claimed under the same lease, executed by Jane Van Allen, who derived her title (an estate during widowhood) under the will of her husband, dated in 179Ó.

Johannis L. Van Allen, the other lessor of the plaintiff, died in 1804.

8. A map ®f the patent, made by Jokn-E. Van' Allen, was produced and proved, exhibiting the location thereof, according to the construction contended for by the plaintiff below, that is the river between Davidson’s creek and the Saw-kill, is represented as the base, and upon that base, the body of land stretches east until its extent is terminated by the lakes. It was proved, that upon this construction, the premises in question are included within the patent; and that if the northern boundary of the patent be run from the mouth of Frans Peterse’s Saw-kill to the southern extremity of the lakes, the premises would also be included. But if the said southern boundary be run from the mouth of the said kill to the nearest point of the lakes, the premises in question are excluded ; and that lines r.un from the. two stations upon the river,east, until a north and south line would strike the west side of the lake or lakes, would also exclude the premises.

As early as the year 1720, a survey and map was, made of the patent to De Bruyn, by Philip Ver Planck, a surveyor of eminence at that day, in conformity to the construction adopted by the plaintiff below; the

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north and south boundary lines running east, and the lakes being the eastern extent of the patent. At the same time, a partial division was made by the said Philip Ver Planch, of lands on the eastern extent of the patents ; and the proprietors being then nine in number, one lot was assigned to each, and conveyed by them to each other, in severalty, and so held ever since.

In the year 1751, the patent was surveyed by I. R. Bleecker, and a division was made of another portion of the said patent by him; and, as it was contended by the plaintiff, upon the same principle of construction with Ver Planck’s survey; and on that division several lots, to wit, No. 8. 17. 30. and 31. lying in the disputed lines, were laid out adjoining to the south boundary line of the patent^ This last-mentioned division was confirmed by an act of the legislature of this state, passed the 4th day of February, 1793, which contained a proviso that nothing therein should affect the rights of any person or persons, except those claiming under Lazo ranee Van Allen.

It was also proved, on the trial, that the boundaries of the patent to De Bruyn had been known, and actual possessions and improvements made under it, throughout every part of the same, and particularly along almost the whole extent of the north and south boundary lines, as far back as the memory of man reached; and that such possessions and improvements have been uninterruptedly held and enjoyed accordingly, to the time of trial.

In further confirmation of the principle of location contended for by the plaintiff below, he prodúced letters patent to Burger Huyck and others, dated the- 6th day of October, 1731, the boundaries whereof are described as follows :

“ A certain tract of land situate, lying and being in the county of Albany, on both sides of the Kinderhook creek or river, beginning at a small black oak tree,

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marked with' three notches, and standing on the brow of the falling off hills, near the south end of the land granted to Dirck Wessels and Garret Teuni’sse, and on the west side of the Kinderhook creek or river, and on t^e SOuth side óf a small run of water, running down ^e said hills, which tract runs from the said black oak tree, north 60 deg. west 95 chains, then north 5 deg. east 40 chains, to the easterly bounds of a tract of land granted to Jan Hendrixe De Bruyn; then along his bounds north 27 deg. east 93 chains, to a large fish pond; then south-easterly $ and northerly along the south and cast sides of the said pond to,” fkc.

By the testimony of John 2?. Van A’len it was proved, that he had never surveyed the latter patent, with any reference to the former, but that he run the east line' of ¡De B. uyn’s patent, as claimed by them in 1793. Its course was then north 9 deg. 15 min. east. The description of the east line of Huyck’s patent was north, 87 deg. east, and if the allowance of the variation of the compass were made, it would cause those lines to diverge still more. The distance from the south-east corner of De Bruyrds patent, as shown, to the lake, was 100 chains, 58 links, and that from the south-west corner of Huyck’s patent to the lake, was 93 chains. The witness did not know that he had ever .run the south line of Huyck’s patent, nor could he speak with any certainty as to the effect of the lines of Huyck’s patent upon De Bruyrds, but from his general knowledge of the country, he believed t¡he southern line of Huyck’s patent would strike near the south-east corner of De Bruyrds patent | but of this he had no knowledge by actual survey.

The plaintiff also produced letters patent to the freeholders and inhabitants of Kinderhook, bearing date the 14th day of March, 1686, in the third year of King James the second, for a tract of land, thus described; “ All that tract or parcel of land that lieth on the east

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side of Hudson’s river, beginning at a place called Swarte Hook, and runs north upon said river four English miles to a certain place called David’s Hook; and then runs east into the woods, keeping the same breadth . , to the land of Dirck Wessels and Garret Teumsse and the high hills, eight English miles; and then south to the fall of Major Abrahams.” This patent distinguishes between such “ parcels as had been in anywise taken up, divid.d, allotted, settled and appropriated,” and the remainder not yet “ taken up or appropriated.” The parcels of the former description are granted to 28 of the proprietors, by name, (De Bruyn, being one of them,) M and to their several and respective heirs and assigns.” The remainder is granted to 31 persons, including the 28 before mentioned, and to their heirs, successors and assigns, to be divided according to the acts, concessions and agreements of the inhabitants, at their town meetings.

A survey and map of partition of the last-mentioned patent was made, in the year 1762, by Hermanus Wen dell', Garrit Van Den Bergh and Isaac Vrooman, commissioners, appointed in pursuance of the acts in that case made and provided, which map was filed in the clerk’s office of the city and county of Albany ; on which partition, the whole of said patent to the freeholders and inhabitants of Kinderhook, which had not been theretofore appropriated, was laid out in lots; and the patent to Jan Hendrixe De Bruyn is on the said map of division, which the counsel for the plaintiff contended is recognised within the same boundaries, and on the same principle of location as always claimed by the proprietors thereof.

Witnesses were also sworn, to show, that the boundary line between De B-uyn’s patent and the patent to Kinderhook, being the south boundary line of De Bruyn’s patent, has always, since the said parti

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tion, ill 1762, been held and possessed in conformity to the recognition thereof, in the said partition.

It was admitted that the lessors of the plaintiff were both dead : one of them died about two years, and the other about one year, before the time of the trial; but their lease to the plaintiff was yet unexpired.

The defendants below contended, that the premises ill question were included within the bounds of an older patent, granted to Captain John Baker and Jacob Janse Flodder, in 1667', the boundaries of which werc^as follows : A certain parcel of bush land near Fort Albany, together with the creek or kill, with the fall of waters, running north and south, lying and being upon the north side of the Emiques1 land, at Kinderhook, and on the west side of the great kill, containing by estimation —-—•— acres of land. The deed of purchase from the said Indians, bearing date, at Fort Albany, March 18, 1666.” By the Indian deed to the above named patentees, the Indians, in consideration of one blanket, one axe, three hoes, two bars of lead, three handsful of powder, one knife and one kettle, conveyed “ all that bush land and kill and fall, running north and south, lying and being upom the north side of the Emiques’ land, at Kinderhook, and on the north side of the great kill.” This deed was filed in the secretary’s office, in February, 1667.

The defendants proved the death of Flodder, the patentee, leaving John Jacobse Gardinier, his eldest son, and heir at law, who. died, leaving Jacob Gardinier, his eldest son and heir at law. They also produced a deed from Jacob Gardinier to Edward Wheeler, dated June 1, 1710; in which the premises conveyed are thus described: “ A certain creek called Fallatje’s Kill, with a saw-mill and a grist-mill standing thereon, in the county aforesaid, behind Kinderhook, with all the land and wood belonging thereto, so as the same is now possessed by the said Edward Wheeler, according to a

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patent granted by Governor Richard Nichols, in the year 1667, on the 13th of April: and also according to a deed of the 18th March, 1666, and referred to in the aforesaid patent to John Baker and Jacob Janse FlodderP '

They next produced a deed from Edzvard Wheeler to Evert Wheeler, dated 5th January, 1739, for the north part of the tract granted to Flodder and Baker, and described as lying upon the Vallatje’s Kill, beginning where the Bollegat sprout or branch empties into said kill, thence going up said creek, and taking in all the lands and woodlands, east and west, as far as the said Edzvard Wheeler’s right extended, to the uppermost part of the pine plains ; also, a deed for the same part, from Evert Wheeler to Peter Deyo, dated 27th October, 1766, for the consideration of forty pounds. They then proved the death of Edzvard Wheeler, leaving Robert, his eldest son and heir; and produced a deed from William Wheeler to Peter Deyo, dated 7th May, 1766, for the residue of the patent to Flodder and Baker, for the consideration of ten pounds. These deeds to Deyo contained full covenants of seisin and warranty. The defendant also produced a deed from Peter Deyo to Daniel Frier, one of the defendants in the court below, for a lot of 400 acres, including the premises in question, for the consideration, of 400 pounds.

The counsel for the defendants then attempted to show, by the testimony of witnesses, many of whom were very aged, the ancient possessions and reputed boundaries of Flodder and Baker’s patent; the whole of which evidence was detailed in the bill of exceptions, but which it is unnecessary to state here.

The counsel for the defendants insisted, at the trial, that upon this evidence, the plaintiff was not entitled to recover,

1. Because, both of the lessors of the plaintiff were dead, and the title was, at the time of the trial, in their

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heirs at law, and, consequently, could not entitle the plaintiff to recover seisin and possession of the premises in dispute, r

2. Because, upon a just construction and location of the patent to Jan Hendrixe He Bruyn, under which the plaintiff claimed, the premises in question could not be included.

3. Because, by a correct construction and location of the patent to John Baker and Jacob Janse Plodder, the premises in question would be covered by that grant, which being older than the one under which the plaintiff claimed, must first be satisfied.

4. Because, the possession of the defendants, and those under whom they claim, have been exercised for such a period, as to toll the right of entry of the lessors of the plaintiff, if any such right in them had ever existed.

But the counsel for the plaintiff insisted, that upon the evidence offered, the plaintiff was entitled to recover,

1. Because James Jackson was the plaintiff in this action, and the death of his lessors could not prevent his recovery.

2. That the patent of John Baker and Jacob Janse Plodder did not cover the premises.

3. That it was not capable of any location whatever.

4. If, at the date of it, any actual possession was acquired under it, although it might protect any such cotemporaneous possession, it could not, at this late date,, be so located, as to embrace any thing more.

5. The patent to John Hendrixe He Bruyn, under which the plaintiff claims, upon a just construction and location, included the premises in question; and,

6. No adverse possession is proved sufficient to toll the right of entry of the lessors of the plaintiff.

The judge delivered his opinion to the jury, as follows ; 66 The motion for a nonsuit, for the death of the lessors

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of the plaintiff, is overruled. Such death cannot affeet the plaintiff’s right of recovery; at least, it cannot be taken advantage of at nisi prius. The first question arises upon the location of the patent to De Bruyn. That is a question of law, unless the patent is ambiguous. In my opinion, it is not ambiguous, and the construction contended for by the plaintiff is correct. The term stretching is to apply to the whole tract of land, and not to the lines, or any of them. The whole tract is to stretch east, in the manner laid down upon the plaintiff’s maps.

“ The construction of this grant being matter of law, is disposed of by the court; and I shall only leave it to the jury to determine, whether any acts of the parties, or acts of the government, have varied from the construction ; for if they have not, the plaintiff is entitled to the verdict.

The defence set up is double. First, under the patent to Baker and Flodder. This patent, supported only by the evidence now offered, is void, and incapable of location. It has no bounds to the east, west, or north, nor does its south boundary necessarily extend from east to west, the whole extent of the Emiques' land, and nothing-more can be protected by it, than what has been so long, held under it, that no other patent covering it can take it away.

“ If my construction is correct, and the premises are in Be Bruyn's patent, the question is narrowed down to the mere adverse possession of the premises in question. The question as to the extent of possession, and connection between the several possessors of the premises in question, is left to the jury. If they find an adverse possession of the premises in question, held by the defendants and those under whom they claim, in regular connection, continued for 2Í' years and five months, prior to the commencement of this suit, then they must find a verdict for the defendants; otherwise, for the plaintiff. An adverse

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possession from the year 1/74 to the present time, will not protect the defendants.

“ The possessions of Robert Wheeler are not to be regarded as permanent adverse possessions; they were probably intended as temporary, for the purposes of hunting, fishing, or cutting timber, without any design to claim the land.

“ The deduction of title, made by the defendant, will not support the idea of adverse possession.”

With these observations, the judge left the cause to the jury, who found a verdict for the plaintiff.

The cause was argued by Sudani, and E, Williams, for the plaintiffs in error, and by Van Burén and Van Vechten, for the defendant in error; but the argument is omitted, as it would not be well understood, without a reference to the maps and diagrams which were produced,

The bill of exceptions was taken to the opinion of the judge on four points.

1. Because both the lessors of the plaintiff are dead ; and on this the defendants grounded their motion for .a nonsuit, which the judge overruled.

3. Because, upon a just construction and location of the patent to Jan Hendrixe He Bruyn, the premises in question could not be included; but the judge determined that the premises ip question were covered by it.

3. Because, by a correct construction and location of the patent to John Baker and Jacob Janse plodder, the premises in question were covered by that grant, which, being older than the one under which the plaintiff claimed, must be first satisfied. But the judge determined that the patent of Baker and Plodder., supported only by the evidence offered, was void, and incapable qi location.

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4. Because the possessions of the defendants, and those under whom they claim, have existed for such a period, as to toll the right of entry of the lessors of the plaintiff, if any such right in the land ever existed. But the judge charged the j ury, that if they found an adverse possession of the premises in question held by the defendants, and those under whom they claim in regular connection, continued for 27 years and S months prior to the commencement of the suit, that then they should find for the defendants ; otherwise, for the plaintiff.-

These points have been precisely stated in the court below, by the defendants in that court and the plaintiffs here, as reasons against maintaining the action; and on those points, in exclusion of all others, the opinion of this court is required.-

1. As to the first point. That the death of a' lessor does not abate a suit in ejectment, has long been the settled doctrine. The action is considered as a legal fiction, devised to subserve the purposes of justice, and to be modelled, as those purposes require ; and so' far has this doctrine been carried, in advancement of justice, that even where the lessor was a tenant for life, his death was not permitted to abate the suit, which, it was-held, might still be prosecuted, for the damages and costs. (2 Str. 1056. Jenk. 293. pl. 38. 1 Bac. Abr. 13. Vin. Eject. (T.) pl. 4.)

2. As to the second point. In the case of Van Gorden v. Jackson, ( 5 Johns. Rep. 467 .) I said, that a bill of exceptions was given by statute, not to draw the whole matter into examination, but only on the points to which It was taken ; and that the party excepting, must lay his finger on those points, which might arise either in admitting or denying evidence or matter of law, arising from a fact not denied, in which either party was overruled by the court. (2 Bac. Abr. 529. Bill of Exceptions, and the cases there cited. 2 Caines, 169.)

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The case on which this court is now required to decide, affords a striking illustration of the utility of this. doctrine; for if the court is to pursue the counsel, in. the line of their discussion, they must, after deciding on the law, examine the evidence, weigh the relative credibility of the witnesses, and determine on the existence of facts, to the total subversion of one of the most salutary maxims of our law, that to questions of fact the jury are to respond ; to questions of law the judges.

The second point relates to the construction' of the patent to Jan Hendrixe De Bruyn. The construction of a grant is matter of law. Its legal effect is only deducible from its terms, according to the intent-^pt the time of making it; (3 Bac. Abr. 393;) and matter subsequent,, which, by showing the sense of parties, may authorize a jury to give a more liberal or restricted construction to it,, as deduced from such matter, is exclusively in the province of the jury. It applies with equal force, whether the terms in which the grant is conceived are certain or ambiguous ; for both require extrinsic aid to give them effect, which aid it is not in the power of the court- to afford. Thus, if the place from which the description-commences, is a lake, and the place to which it is to proceed, a brook, the court would restrain the parties from taking a rock for the one, or a. mountain for the-other ; but which Was the particular, lake or brook intended, must necessarily be left to the jury.

The patent to De Bruyn, dated in December, 1686,. requires it to stretch from David’s Hook, southerly,, along the river to the Saw-kill of Frans Peterse Cl aver,. stretching to the east, and into the woods to the two first: lakes.

Respecting the two stations on Hudson’s river, David’s Hook, and the Saw-kill, there is no contention;- and no construction has been suggested, as a substitute, for-carrying the eastern extent of De Bruyn’s patent to the Fish Lake. The first reach, or stretch from one sta—

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tion to the other, on the Hudson, has no latitude, and no direction, but along the river. This, therefore, could only have been a line along its shore, bending with, and corresponding to its inflections, from one point to the other.

The next stretch is to the east, and a single line in that direction covers no land; it could not possibly touch the two lakes, as they are described in the patent, or the two expansions of the Fish Lake; and it gives no closing lines ; for if a single line is to be run east, it is absolutely necessary to supply others, if the lake is not coextensive with the distance- between the two stations on the Hudson, from the termination of the east line to and along the lake, and from thence a closing line to David’s Hook. There are no terms in the grant which can possibly supply these lines, if lines only are assumed, as the means of description; and I know of no legal principle, which will afford a ground for so subtending those lines.

In giving my opinion, in the case of Van Gorden v. Jackson, ( 5 Johns. Rep. 462 .) I said, that the word stretching, in its common use in grants, during the early periods of the English colonial government here, was applied either to the extent of a single line, or to a rolling location, in which the breadth being described bylines or surfaces, was carried, with such breadth, to the object described at its terminus. This I still think correct, when applied either to a line, or to a rolling patent, not limited in its lateral extension, after departing from its base.

The patent of De Bmyn has no extent eastward from the river, unless the rolling construction is applied. It -is to stretch east, and into the woods, to the first two lakes. No. other lakes having been shown, to which the description can apply, the Fish Lake, which, from its conformation, was probably- considered as composing two distinct lakes, and respecting which there has not been

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much contention, must be taken to be the lakes intended *n t*le Patent* The space between the two points on the river, are admitted to be at a greater distance from each other than the northern and southern extremities of the iake.

It does not require a square or a parallelogram to satisfy the terms of this patent. If, as far as respected its lateral extent, it was to have been located in unlimited spfice, and the lake had been of as great or greater extent than that between the two points on the Hudson, its breadth, to satisfy the terms of the patent,, ought to be carried without variation throughout; but its- lateral eastern extension must unavoidably be contracted-by circumstances. Thus, if the terms had been, stretching to the east, to- a tree accurately described, so as not to admit a doubt of the tree intended standing on the west bank of the Fish Lake; these terms, construed-according to the settled law,- uniformly applied to all the grants of the crown, that they shall receive a construction most beneficial to its interests, would have imposed a construction, that two lines, drawn from the given stations on the Hudson to such tree, so as to make it the vertex of the triangle, included the land intended to be granted; and if, instead of'a tree? a lake (as in this case) was given, as a boundary, of less extent than the space between the two stations on the Hudson, the construction, on the same, principle, must be, that all the land lying between the Hudson and the lake, and straight lines drawn from the extremities of the latter to the stations on the Hudson, was included by that description. If this rule was- not to be applied, the extension of the whole breadth to the point, at which it first touched the lake, would equally satisfy the terms of the patent, with the construction which I deem the correct one.

My construction of the patent, deduced from- these considerations, is,, that the line from David's Hook to-

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the Saw-kill, is to be drawn between those points, along the east shore of the Hudson, and composes the ■western boundary; a line along the west shore of the Fish Lake, • • i in its whole extent, the eastern boundary ; and straight lines from the extremities of the lake, to the stations on the Hudson, David's Hook, and the Saw-kill, the northern and southern boundaries. This construction satisfies all the terms of the patent.

The direction of the extent from the river is positively east. As applied to the space on the Hudson and on the lakes, the diagrams of the parties united in showing that the -direction was accurately described. The outlines, however, on the given construction, do not comport with an east course. If the description had applied to lines only, the well settled rule of construction, that where a course and natural boundary are given, and they do not correspond, the course must yield to the boundary, as more certain, would reconcile them; but if it is only applied to a line run to the lakes, it being required to be run east to the lakes, though it might be a question at what particular part of the Fish Lake the east line was to terminate, no liberality of construction could substitute a line, widely departing from it, and which would require almost a rightangled line to close on it, when a direct line, in that sense, was described, commencing at the Hudson, and terminating at the lake.

Whether the location I have described will exclude the premises in question, is not a subject for the determination of this court; for here, as in the court below, after the law has been pronounced, the jury only can apply it to the facts, which are to be collected by them from the evidence adduced; and they only can decide whether the premises in question are within or without it. In this case, if the judge has not given the true construction, he has mistaken the law on the subject, and if, instead of leaving it to the jury to decide whether De Bruyn's patent included the premises, he has decided, as matter of

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law, that the premises were covered by it, he assumed a riSht determining on both law and fact; and hi that he has erred. If, indeed, the judge, in giving his opinion on the result of the evidence, had so charged the jury, the better resort would have been to the supreme court, for a new trial, on the ground of misdirection; but as it comes up, as a matter of law, arising from a.fact not denied, the existence of the patent, I hold it, if it is well taken, a valid reason to be assigned in error.

3. The next point in the bill of exceptions, is, that the judge determined that the patent of Baker and Floclder, supported only by the evidence offered, wj<® void, and incapable of location.

In the exposition of ancient grants, our courts have uniformly been liberal, to give effect to them, according to their intent. The patent to Baker and Fladder is an ancient grant. It is dated in 1677, only three years after the surrender of the colony to the English, and intermediate that event, and its final cession, in 1674, a period claiming peculiar indulgence as to the construction of the grants then issued; the descriptions of that day being more inaccurate, from the circumstance of the conquering and conquered people speaking different languages ; from the imperfect knowledge of the interior of the country, beyond the shores of the navigable waters ; and from the grants not being preceded by actual surveys. All these considerations are connected with the general history of the.country, and some of them are deducible from the grants now under examination, and, of course, proper to be mingled, in giving it a construction, if it should be requisite to resort to those aids : for whatever may be the circumstances under which it was made, it must receive its construction from its terms, and according to its intent at the time, it was issued; but to test the opinion in review, it is only necessary to determine whether this is a void grant.

From the terms of Baker and Plodder’s patent, it is to

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•he collected, as a legal construction, that a certain parcel of hush or wood land, together with a creek or kill, with the fall of water, running north and south, lying and being on the north side of the Emiques'1 land, and on the west side of the great kill, was granted.

Bush or wood land, a creek and a fall, are descriptions of subjects susceptible of grant; and the further description, lying on the north side of the Emiques1 land, and the west side of the great kill, without evidence extrinsic the patent, might, by possibility, be as perfect as the ingenuity of man could have devised, for aught that appears from the patent; for the great creek and the Emique’s land might form a square, a circle, or a polygon, completely enclosed, and defined by those objects.

In every general description of this kind, its application is to be determined from the situation, form and extent of the objects to which it relates ; and both the Emiques’ land and the creek, though the general bearing of the whole extent might satisfy the terms of description, as lying on the north side of the one, or west side of the other, might be of a shape to enclose the land granted, so as to leave no doubt as to the object of the grant.

Uncertainty as to the application, abstracted from the question of law, must unavoidably exist, as to all grants; for it will be readily comprehended, that it is not possible to make a grant of any parcel of land, by metes and bounds, defined with perfect accuracy, which a stranger, totally unacquainted with the objects of the grant, but from its import, and unacquainted with the country contiguous to it, can locate, without acquiring a certain portion of knowledge for that purpose, extrinsic the grant. He must ascertain the distance and names of the lakes, rivers, or creeks, if either compose part of the description; and in locating the simplest figures, a square or a circle, the place of beginning of the one and the centre of the other, must be necessarily discovered by inquiry, or knowledge acquired extrinsic the grant; and a

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person perfectly acquainted with every circumstance essential to a correct location, could not possess that . ’ r knowledge intuitively ; but would insensibly avail himself of it, as if it had been expressed in the grant.

The judge, in this case, did not found his opinion on the patent only, but also on the evidence offered in connection with it; the qualification he made, that nothing more could be protected by the patent than what had been so long held under it, that no other patent covering it could take it away, he obviously grounded on the right of possession only, for it could have no effect on the possessory right, but as evidence that the person possessing claimed the land as his own. From a void patent, no right could possibly be deduced:

This could not be a void grant, on another ground; for some of the subjects of grant were obviously described with suificient certainty. A creek is a word as certain as a house: a fall, if a distinct object of grant, is equally so. That a fall is mentioned, when, in fact, there were several falls on the creek granted, which has been urged, though it does not appear, would not detract from its certainty, if the creek passed ; for a grant of a tract of land, comprised in certain and indubitable boundaries, together with a house, would pass all the other houses erected on it.

The only authority which has been cited, as applicable to this subject, is one in which a tract of land was granted, as lying in one county, when, in fact, it extended into another. It was held, that it could not operate to pass the land beyond the bounds of the county to which it was-limited; and this cannot, on any construction, be considered as uncertain, for it was certainly beyond the limits of the grant. (Moore, 176. 3 Bac. Abr. 389.)

In this case, the charge was general, that the grant was void. If it is void, this court, by concurring in that opinion, will decide the only question presented on

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this point; for it cannot be necessary to examine the construction of a totally inoperative grant. If it is not void, the application of the construction cannot be got at here ; for by pronouncing the opinion of the court below erroneous, all decision, beyond that point, must be extrajudicial.

The court below was not correct in deciding beyond ' the mere question of law; for, as to the facts, the jury were to decide exclusively; and this rule is so rigid, that in an action of trover, though a demand and refusal is so far conclusive evidence of conversion, that the court will set aside a verdict finding contrary to it, yet if upon a special verdict, both demand and refusal are found, it has been held, that the court cannot infer a conversion from those circumstances.

I am, therefore, satisfied that the opinion expressed on this point, was not correct; and that in this there is also error.

4. The fourth point did not arise in admitting or denying evidence or matter of law, arising from a fact not denied. It was a proper subject to ground an application for a new trial. It is not, therefore, a point on which the opinion of this court, on a bill of exceptions, can be required.

I have before intimated, that the mode of proceeding, by bill of exceptions, is derived from a statute provision, that it was the intent of the statute to enable a party to avail himself of error not apparent from the record; that the review is rigidly confined to the precise exceptions in the bill, and to no other; that it never can be a ground for a general examination of the record, much less of the evidence offered in a cause, which is only introduced explanatory of the bearings of the exceptions ; that the statute did not intend to withdraw from the jury their incontrovertible right of determining upon facts. Hence all the points which have been discussed, not appearing from the bill, were not well addressed

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to this court, and must be considered as out of the case ; and whether the patent „of Baker and Flodder is to re-' ceive the one construction contended for, or the other, cannot, on this bill, be a subject of decision. If its cor» rect legal effect had been communicated to the jury, it would have become their duty to have considered the evidence ; to contrast, to weigh it, to decide on the relative credibility of the evidence offered, and from the whole, to locate the patent. That they were not permitted to do so, appears to me to be manifest error; and for the reasons I have assigned, I am for reversing the judgment, on the second and third exceptions taken in the bill.

Lewis, senator, declared, himself of the same opinion.

Platt, senator, also concurred.

jun. senator. The points in this cause, as stated in the bill of exceptions, taken to the opinion of the judge at nisi prim, are four. (Here he stated them.)

The rule of practice, as to the first point, has long been settled, the action of ejectment being a mere fiction to try the title. Where the estate does not cease to exist in the heirs, by the death of the lessor of the plaintiff, the suit does not abate.

The second point involves the construction of the patent to Jane Hendrixe De Bruyn, granted in December. 1686, under which the plaintiff claims.

The description of this patent is as follows : “ That certain piece or tract of land lying on the east side of Hudson’s river beginning from Davidson’s creek, and from said creek stretching southerly along the river to the Saw-kill of Frans Peter Claver, and stretching to the

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¿ast, and in the woods to the first two lakes, or in-waiers-”

Was the question now to be decided on the testimony, as presented in the bill of exceptions, the original location, the survey by Ver Planck in 1720, the regulations of government in 1731, the division made by Bleecker in 1751, and the admissions, as far as the acts,of the patentees of Kinderhook could be called so, in the subdivision of their patent, would be strong reasons for not disturbing lines which had been acquiesced in for so long a period of time; but we are confined within narrower limits. The question before the court now to be decided is, whether the judge was or was not right in his decision and charge to the jury, and which, on this point, was a mere legal construction founded on the patent itself. A construction must, therefore, be given by us to this patent, without that testimony. The line from JDav/dson’s creek to the Saw-kill of Frans Peter Clover, is along the river; it is admitted that the Fish Lake is one of the lakes intended in the grant, and from, the facts, as they appear before us, we have reason to believe that the Fish Lake, from its form, is the same with the two lakes mentioned in the said grant. Those facts being settled, and in some measure admitted by both parties, it follows, of course, that the river is the western, and the lake the eastern boundary. The only question then to be determined, on this second point, is, what construction must be given to the word stretching’, as used in the patent; whether it applies to the lines, to the land, or to both; and if applied to either, or both, whether it necessarily follows, that the northern and southern boundary lines of the patent should be parallel to each other, and should be extended from the river, as its base, a due east course, until it intersected a line north and south through the lake. If a correct construction will not warrant the running of the southern line, parallel to the northern, or a due east course, whether

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that line ought to incline to the north, so as to touch the southern extremity of the lake, or should incline . ' J . still more to the north, so as to touch that part wnich is , . . . , • r nearest the river, being, the westernmost extremity or the lake. Stretching, as used in the patent, is, in my opinion, applicable to the lines as well as the land ; that it does apply to the lines, is evident from the manner in which the same word is before used in the description of this patent: “ From said creek stretching southerly, along the river, to the Saw-kill of Frans Peter Claver;n clearly intending that the line along the river should Stretch southerly: the Saw-kill of Frans Peter Cla.ver not extending along the southern bounds of the whole tract: and that the lines, as well as the land, are intended by the word stretching, as used the second time, appears evident to me, from the consideration that the place of beginning, at the north-western corner of the tract, had been designated, and the line along the Hudson, and the" south-western corner mentioned. The general words, therefore, “ stretching to the east,” are applicable to the land, as lying along the described base, and more particularly to the lines as stretching from the northern and southern extremity of the base “ to the east,” or a due east course, as nearly as possible, so as to cause both lines to touch the lake or lakes. If, therefore, a due east course of the south line will touch the lake at all, ta this course they ought theft strictly to adhere, in ascertaining the true bounds of the patent; but if it will not touch the lake, a straight line, for the southern bounds of the patent, ought to be drawn from the south-western extremity of the base to the lake, deviating from a due east course as little'as possible. It would be improper to draw the line from the Saw-kill to the nearest part of the lake, unless that part extended further south than any other part of it, but the line must be so drawn as to touch the most southern extremity or projection of the lake. It is immaterial, in my view, whether this line

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is the shortest or longest. When a natural boundary and course cannot both be reconciled or satisfied, the course ought to be abandoned no farther than is absolutely necessary to correspond with the natural boundary# If this line be adopted as the southern boundary, it is admitted that it includes the premises.

The judge, therefore, was correct, as far as it affects the present cause, in giving the construction to this grant, that the premises were included in it; but I do not agree with him in the opinion that “ the whole tract of land, between the two river stations, must stretch east, in the manner laid down in the plaintiff’s map.”

The third point involves the construction of a patent granted to John Baker and Jacob Janse Bladder, described'as follows :

“ A certain parcel of bush land, near Fort Albany, together with a creek or kill, with the fall of water, running north and south,.lying and being upon the north side of the Emiques’ land, at Kmderhook, and on the west side of the great kill, containing, by estimation, -- acres of land.”

This patent of Flodder and Baker will not admit of any possible construction, so as to include the premises. I am fully persuaded, from the words of the grant, that it is impossible, at this time, to give any just construction to it, or to discover what was intended by government, except the creek at the fall, and the fall; but what, or how much land, is uncertain. We can only judge from the location of it by the patentee, which was the creek at the fall, and the land immediately adjoining. If any other possessions or locations did exist, the jury must have taken them into consideration, under the charge given by the judge; which charge, in relation to this patent, was, in my opinion, correct.

The fourth point, in relation to adverse possession, was properly submitted by the judge to the jury ; and I see no cause of exception to the manner in which this

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was submitted by him. The testimony was not such as to make out an adverse possession. I am, therefore, of opinion that the judgment of the supreme court ought to be affirmed.

But a majority of the court^[1] being of opinion that the judgment of the supreme court ought to be reversed, it was thereupon ordered, adjudged and decreed, that the judgment rendered by the supreme court be reversed, that the record be remitted, and a venire facias de novo be awarded by the said court.

* For affirming, 6; for reversing, 14.