Anderson v. James — 27 N.Y. Super. Ct. 35

Majority

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Katharine C. Anderson, plaintiff, vs. Sarah James defendant.

Headnote

1. A sheriff’s certificate of sale of real estate is by statute made presumptive evidence “ of the facts therein contained,” but it is not evidence, presumptive or otherwise, of any other fact.

2. The mere recital, in a sheriff’s certificate, of an execution, is not evidence of its existence, because such recital is not a necessary part of. the certificate, which is made evidence of those facts, only, which the statute requires should be stated in it.

3. Where, from the description of the premises, in a deed, it is manifest that the parties intended to limit and restrict their boundary to the line of the side of a highway or street, no part of the highway or street passes.

4. A deed which conveyed a plot of ground lying on the Southerly side of Stewart street, described its boundaries as running along a certain road “ to Stewart street, and thence atony the southerly side of Stewart street,” in a certain direction; Seld that this description did not carry the right of the grantee, under it, to the centre of Stewart street, but only to the line of the southerly side of that street.

(Before Monelu, Garvin and Jones, JJ.)

Heard February 5,1866;

decided March 12,1866.

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This action was brought to recover the possession of a plot of ground in the city of Hew York.

The plaintiff proved a judgment recovered in the mayor’s court of said city, in. favor of one Moóre, against William J. Stewart, docketed April 16, 1821. She also read in evidence a certificate of the sheriff of Hew York of the sale of the right, title and interest of Stewart in certain premises therein described. The certificate recited that' by a writof/?er¿ facias, upon the said judgment he sold, &c.

The execution was not produced, or otherwise proved than by the recital in the sheriff’s certificate. The plaintiff also proved a deed from the sheriff of Hew York to Abel T. Anderson, dated March 6, 1823, reciting the aforesaid writ of fieri facias, and conveying the premises. The only part of the description in the deed which is material is as follows: “ Thence northerly along the said road 144 feet to Stewart street; thence along the southerly side of Stewart street westterly 260 feet.” The plaintiff claimed under this deed.

The action was tried before Mr. Justice Monell and a jury. It was proved that, Stewart street or lane was on the north side of Stewart’s property, commencing at the Bloomingdale road,- and running westerly past the Chatham property. It was partly fenced and was sometimes closed with gates or bars, but at the Sixth avenue Avas always open. It was from fifty to sixty feet wide. The plaintiff claimed title to half of Stewart street, under the description in the sheriff’.s deed.

At the close of the plaintiff’s evidence the defendant moved for a dismissal of the complaint on the grounds : first, that there was no proof of any execution upon the judgment; and second, that the plaintiff had failed to show title to the premises in question. The motion was granted, and the plaintiff excepted.

Judgment was suspended, and the exceptions directed to be heard in the first instance at the general term.

G. W. Stevens and A. It. Dyett, for the plaintiff.

L. S. Ghatfield, for the defendant.

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By the Cotjet,

A party claiming title to real property under a sheriff’s deed must show a judgment and an execution issued thereon authorizing the sale. (4 Cowen & Hill’s notes to Phil. Ev. 1078, note 738, and cases there cited.)

The corticate of sale which the statute directs the sheriff to make (2 R. S. 270, § 42,) must contain a description of the premises sold, the price bid, the consideration paid, and the time when the purchaser will be entitled to a conveyance. It need contain nothing more. Such certificate is made presumptive evidence “ of the facts therein contained.” (§ 44.) But it is not evidence, presumptive or otherwise, of any other fact. (Williams v. Merle, 11 Wend. 80 . Browning v. Hanford, 5 Denio, 586 .) The mere recital in the certificate of an execution, was not evidence of an execution, inasmuch as such recital was no necessary part of the certificate, and the certificate is made evidence of such facts only as the statute requires should be stated in it. There was, therefore, a failure to prove a valid sale, as no execution authorizing it was shown.

' But the plaintiff failed to show title for another, and perhaps a more substantial reason. The sheriff’s deed conveyed to the plaintiff’s testator a plot of ground on the southerly side of Stewart street, and which is described as running along a certain road, “ to Stewart street, and thence along the southerly side of Stewart street westerly,” &c. And it is claimed that such description carried the grantee to the centre of such street. The rule is, that general words of description bounding lands along a highway, or upon a highway, or as running to a highway, are expressive of an intention to convey to the middle of the highway. (Jackson v. Hathaway, 15 John. 454 .) But when, from the description, it is manifest that the parties intended to limit and restrict the conveyance to the lines of the highway or street, no part of the highway or street passes.

It is claimed however, in the case before us, that the words “ to Stewart street,” carried the grantee to the centre of that street, and that these words are not limited in their effect, by the subsequent words “ thence along the southerly side” of such

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street. This is a question of intention, which is to be determined by the language used. To my mind they plainly indicate an intention to limit the grant to the southerly side of Stewart street. Any other effect which could be given to the words “to Stewart street,” if they stood alone, is destroyed by the immediately following and restrictive words “ thence along the southerly side,” &c. .

But the question is disposed of upon authority. In Child v. Starr, ( 4 Hill, 369 ,) the description was (S. C. 20 Wend. 149 ,) “ thence easterly forty-five feet to the Genesee river; thence northwardly along the shore of ..said river,” &c. And it was held by the court for the correction of errors, that no part of the bed of the river passed, under the conveyance, but that the grantee took only to low water mark; and the chancellor says that the same rule applies to highways, &c..

The analogy between that case and the one before us is perfect.

The exceptions should be overruled, and judgment ordered dismissing the complaint, with costs.

Cases cited

Starr v. Child 20 Wend. 149 N.Y. Sup. Ct. p. 38