Lovejoy v. Tietjen

Headnote

Conveyance of real estate —when the points of the compass, as contained in the deed, are at vm'iamce with the true location of the lot, as determined by measurements, the courses and, distances must always give way to the monuments.

Appeal from a judgment in favor of the plaintiff entered after a trial at Special Term.

This action was brought to recover a deposit, made upon the purchase at auction, of certain real estate and the expenses of investigating the title. The plaintiff obtained a judgment for $580.08, damages and costs, and from such judgment this appeal was taken. The question involved arises' as to the defendant’s title to a part of the premises sold, viz., No. 38 Pike street. At the auction sale the premises were spld as No. 38 Pike street, and by no other description. The lot in question formed part of lot No. 386 upon the map of Rutger’s farm, and in 1807 was conveyed to one Leonard Fisher. Leonard Fisher died leaving a last will and testament, which was duly admitted to probate, by which he devised lot No. 38 Pike street, without any other description, to Louisa Langstaff and Augusta Langstaff, who, in 1852; made a conveyance to one Boehringer of the premises by the following description: “All the following premises situate in the city of New York, and described as follows, to wit, being part of the lot No. 38 Pike street, and beginning at the northwest corner of said lot, running thence south about fifty feet; thence east twenty-seven feet; thence north a,bout fifty feet to Pike street; thence west along Pike street twenty-

seven feet to tbe place of beginning, being tbe same premises mentioned in tbe last will and testament of Leonard Fisher, deceased.” This description was tbe one wbicb was claimed to be too vague, uncertain and indefinite to locate tbe premises sought to be conveyed.

Tbe court at General Term said: “ It seems to be conceded by tbe respondent that if tbe deed bad purported to convey tbe whole of 38 Pike street, that no difficulty would have arisen in identifying tbe premises intended, but as tbe deed purported to convey onjy a part of lot No. 38 Pike street, and not tbe whole lot, that tbe vagueness and uncertainty of tbe description becomes material. If Pike street ran east and west, instead of north and south, as it actually does, tbe description would be perfectly intelligible. Tbe conveyancer in drawing this deed made a mistake evidently in tbe points of the compass. Hence tbe difficulty. Tbe lot, as described, is stated to be a part of lot 38 Pike street; it has a front on Pike street of twenty-seven feet and a depth of fifty feet on each side. These dimensions are fixed and determined and there is only one part of tbe lot 38 Pike street as conveyed to Fisher wbicb can fulfill these conditions. It is true that tbe points of tbe compass, as contended in tbe deed, are at variance with this location, but courses and distances must always give way to monuments (2 Wash, on Peal Prop., 6Y4), and as there can be no mistake as to what was intended by tbe description m question; when we disregard tbe mistake in the points of tbe compass there is no ambiguity or uncertainty in tbe description. If we have a front of twenty-seven feet on Pike street wbicb is a natural boundary, and a depth of fifty feet, we have no difficulty in locating tbe property in question, as that part of 38 Pike street wbicb tbe plaintiff actually bought.

“ Tbe judgment appealed from should, therefore, be reversed and a new trial ordered, with costs to tbe appellant to abide tbe event.