Casey v. Dunn — 29 N.Y. St. Rep. 355

Majority

p. 355

Lawrence S. Casey, App’lt, v. Eliza Dunn, Resp’t.

(New York Superior Court, General Term,

Filed January 6, 1890.)

Headnote

1. Deed—Description.

The deed under which plaintiff claimed described the side lines as running parallel with a certain street to Lot 80. It appeared that if extended the distance named in the deed the lines would not reach Lot 80 by five inches. Held, that the expression as to the direction and the intent to extend the lines to Lot 80 were certainties and that there was a mistake in describing their length that could be corrected by the other terms of the deed.

2. Same.

It is immaterial that the lines of neighboring property did not run parallel with said street, as plaintiff’s grantors had a right to convey their property as they saw fit to describe it, although not under a system which others used.

3. Same—Champerty—Adverse possession.

To avoid a deed under the statute on the ground of adverse possession by another, such possession must be under a hostile claim of a specific title. Possession under a specific claim based upon deeds which on proper construction are not in conflict with such deed is not sufficient to have that effect.

Appeal from judgment entered on a verdict for defendant, as directed by the court, and from an order denying plaintiff's motion for a new trial made upon the minutes.

Shepard & Osborne, for app’lt; Joseph Fettrelch and Meyer Butzel, for resp’t.

The action is in ejectment The question in the case concerns the construction of the description in several deeds under which plaintiff claims. That description is: “Beginning at a point on the northwesterly side of Grove street, distant 142 feet 8 inches northeasterly from the northwesterly corner of said Woodruff avenue and Grove street, running thence northeasterly along Grove street 25 feet, and thence northwesterly and parallel with Woodruff avenue 108 feet 9 inches to lot Ho. 80 on said map ; thence southwesterly along Ho. 80, 25 feet, and thence southeasterly and parallel with Woodruff avenue 108 feet 9 inches to the westerly side of Grove street, the point or place of beginning.”

If this description were applied to the land itself, it would ap

p. 356

pear that the lines said to be parallel to Woodruff avenue, if protracted no more than 108 feet 9 inches, would not reach lot No. 80 by 5 inches; if protracted those 5 inches further they would reach lot No. 80. For this reason the plaintiff claims that those lines should in fact be run, not parallel to Woodruff avenue, but in such a direction that at the end of 108 feet 9 inches they would reach lot No. 80. If this position were right, then the plaintiff showed, as against the defendant, title to the locus in quo.

The question is, did the grantors intend that the lines should not be parallel, or did they make a mistake as to the length of those lines that can be corrected by the other terms of the deed ? There is no evidence that the lines were not meant to be parallel to Woodruff avenue. There is certainty in the expression, and the' lines can be applied to the land as it was owned at the time of the various deeds. It is equally certain that they meant that the lines should be extended to lot No. 80, and that the northern boundary should run along that lot It is the necessaryinference from these certainties that there was a mistake in describing the length of the parallel lines 108 feet 9 inches, and that it was intended that those lines should extend 109 feet 2 inches. The learned judge below was correct in his construction of the conveyances.

The plaintiff was not in such an adverse possession of the locus in quo that certain deeds offered to show defendant’s title were void under the statute. To avoid a deed for such a reason it must appear that the adverse possession was under claim of a. specific title, and that the specific title is hostile to the title made by the conveyances. In the present case there was no other specific title claimed than under the deeds that have been construed. By their proper construction, they were not in conflict with the conveyances claimed to be void

The plaintiff did not show an adverse possession that, maintained for twenty years, makes title or presumption of title. The fence was not built until 1869.

Nor was there any practical location, as it is called, of a boundary which would affect plaintiff’s title. In the first place, there was not in fact any doubt as to the true lines, although the parties may have erred as to the correct position of the lines. In the second place, from the testimony given, the parties actually intended that the fence shordd be built according to the true and valid positions of the lines.

It was argued by the learned counsellor appellants that from the lines contained in conveyances of neighboring property, some of which were in evidence and some excluded, it was manifest that the hues in question were meant to be not parallel to Woodruff avenue, but at right angles with Grove street, for the reason that in that case the lines of the deeds under which plaintiff claims would agree in direction with the lines of the conveyances of the neighboring land. The argument is inefficacious, because the grantors of plaintiff had the legal power to convey their property as they saw fit to describe it, although that description might not be made under a system which others used for their property.

p. 357

The judgment and order appealed from should be affirmed, with costs.

Freedman, J., concurs.