Harris v. Oakley — 26 N.Y. St. Rep. 824

Majority

p. 824

James Albert Harris et al., Resp’ts, v. Monroe H. Oakley, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed October 19, 1889.)

Headnote

Ejectment — Evidence—Declarations oe grantor.

Where, in an action of ejectment, this court at general term has construed the deed in question in favor of plaintiff, declarations of a grantor, before the execution of the deed to defendant, tending to establish a boundary other than that made by the deed as so construed, are inadmissible upon a new trial.

Appeal from the judgment entered on the findings and decision of the court at the circuit, a jury being waived.

William H. Whiting, for app’lt; Horace McGuire, for resp'ts.

The action was ejectment for a triangular piece of land, title to which depends upon the correct location of the boundary line between parcels of land conveyed by the same grantor to the plaintiffs and the defendant, respectively.

The questions presented, aside from those relating to the admission of evidence, are precisely the same as those presented on a former appeal decided in this court in June, 1888. 17 N. Y. State Rep., 198. That decision gave construction to the deeds of the parties and located the boundary line in accordance with the contention of the plaintiff. It was also held at that time, and upon the same evidence as that now in the case, that the deed to the plaintiff was not void, under the statute of Champerty, in respect to the piece of land in dispute. Ho question, therefore, remains to be considered on this appeal except those which arise upon rulings of the court and on the trial now under review; and in this respect we think the exceptions point to no error.

The rulings in question excluded testimony offered to show declarations by the grantor, before the execution of the deed to the defendant, tending to' establish a boundary other than that made by the deed as construed by the former decision of the court. The effect of such testimony would have been to accomplish a conveyance of land by paroi, in contravention of the statute of frauds; or to vary the description contained in the deed, for which purpose it was incompetent under elementary rules of evidence; or to establish an equitable counterclaim for the reformation of the deed on the ground of mutual mistake, for which purpose the proper parties were not before the court, nor the proper averments in the answer.

Under the decision on the former appeal the judgment now appealed from must be affirmed.

Barker, P. J., concurs.