Second Methodist Episcopal Church v. Humphrey — 58 N.Y. St. Rep. 616

Majority

p. 616

The Second Methodist Episcopal Church in Greenwich, Resp’t, v. Sarah Humphrey, App’lt.^[1]

(Court of Appeals,

Filed April 10, 1894.)

Headnote

Deed—Reservation.

No one, claiming under a deed, which reserves a lot from its operation and recognizes the title of another thereto, where such lot is practically located and identified, can dispute such title. ,

Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon -an order made November 22, 1892, which affirmed a judgment in favor of plaintiff entered upon the report of a referee. This was an action of ejectment. The premises in question were claimed to have been purchased by plaintiff from one Osmer Dixon, who died in 1849. Defendant claims under a deed from Phineas Dixon, the only heir at law of said Osmer Dixon, to one Aaron M. Hyatt. The further facts, so far as material, are stated in the opinion.

JR. A. Parmenter, for app’lt; G. G. Van Kirk, for resp’t.

deed from Phineas Dixon to Hyatt reserves from the grant the lot sold to the plaintiff. It is through this deed that defendant claims title. Her mediate grantor, Phineas Dixon, thus not only reserves the plaintiff’s lot from the conveyance to Hyatt, but he recognizes the title of the plaintiff and admits its existence. The evidence in the case plainly locates the lot thus sold. At the very time of the conveyance to Hyatt, there was a fence around the lot of the plaintiff, as now claimed by it, and the fence had been built at that time for at least ten years. The lot sold the plaintiff is thus identified and located practically. No one claiming through the Hyatt deed can dispute the title of the plaintiff to the lot which had been sold to it. We see no error in the record and the judgment should be affirmed, with costs.

Judgment affirmed.

All concur.