Jones v. Cowman — 4 N.Y. Super. Ct. 234

Majority

p. 234

Jones v. Cowman.

Headnote

Where in a conveyance of city lots, the premises were described as being bounded by exact measurement of feet and inches, then on two sides by the side of two several streets laid out and opened, and then “ southerly by the northerly line or side of T. B.’s lane and the deed also described the premises as lot 21 on a map referred to, and as bounded by two other lots on that map, and the map contained those and a large number of city lots, exactly protracted by metes and bounds, excluding the streets and lane ; Held, that the description limited the grantee to the northerly side of the lane, and did not carry him to the centre thereof.

In a deed, bounding the grantee by a lane, there was added in the description of the premises, “ Together with the use and privilege of the said lane, until the Mayor, Aldermen and Commonalty of the city of New York, shall cause streets to be opened running through or adjoining the said piece or parcel of land hereby grantedHeld, that the latter words were evidence of an intention on the part of the grantor, to exclude the lane from the principal grant. Per Vandebpoel, J.

In an action of ejectment, the inquiry respecting the plaintiff’s title must be'confined to the question what was conveyed to him by his immediate grantor, not what ought to have been conveyed to a remote source of the plaintiff’s title.

In ejectment, the plaintiff can only recover on the strength of his own legal title.

Nov. 20;

Dec. 23, 1848.

■ This was an action of ejectment brought to recover the possession of certain premises in the 16th ward of the city of New York, being the northerly part of a certain strip of land formerly known as Burling’s Lane. The cause was tried before Chief Justice Oakley,qn May, 1848.

On the trial of the cause, it appeared in evidence that the defendant was in possession of the premises in question. The plaintiff’s counsel then read in evidence a conveyance from Thomas Burling and wife, and Samuel Burling and wife, to Benjamin F. Haskins, which deed was dated April 23d, 1806, and was duly acknowledged and recorded, and conveyed “all that certain piece or parcel of land, situate, lying and being in the 16th ward of the city of New York, bounded westerly by land late of John Thornton, northerly partly by land of James R. Smith, and partly by land belonging to Isaac Varían, easterly by land now in the possession of the said Benjamin F. Haskins,

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and southerly by a lane 20/eei in width, belonging to the said Thomas Burling and Samuel Burling, leading to the Bowery Road, containing twenty-nine lots of land of 25 feet by 100 each, be the same more or less; together with the use and privilege of the said lane, until the Mayor, Aldermen and Commonalty of the city of New York, shall cause streets to be opened,” &c. The plaintiff’s counsel then read in evidence, a mortgage executed by Haskin and wife to Thomas Burling and Samuel Burling, upon the same premises, to secure a part of the purchase money; also, an assignment of the said mortgage from the mortgagee to Thomas Nixon, dated June 23d, 1807, duly acknowledged and recorded. The plaintiff’s counsel then read in evidence a bill of foreclosure of the mortgage, filed by the executor of the assignee of the said mortgage, under which a decree was obtained May 21, 1842, and the premises sold under the direction of Thomas Addis Emmet, master in chancery. Upon the sale, the master conveyed by deed, dated July 9, 1832, to Alfred Lowe, “ all that certain lot, piece, or parcel of land, situate, lying, and being in the 12th ward of. the said city of New York, and known and distinguished on a map of land in the 12th ward of the city of New York, under mortgage to the estate of Thomas Nixon, deceased, dated.New York, February 1, 1831, drawn by Geo. B. Smith, city surveyor, as lot No. 21, bounded and contained as follows: northwesterly, in front by the southeasterly line or side of the Fifth Avenue, 23 feet. Northeasterly, by lot No. 22, on said map, 100 feet. Southeasterly, in the rear by lot No. 25, on said map, 14 feet, 3 inches. Southerly, by the northerly line or side of Thomas Burling'1 s lane, 36 feet, 9 inches. And southwesterly, by the northeásterly •line or side of Seventeenth street, 64 feet, 2 inches; as by said map will more fully appear.” Next, a deed from Alfred Lowe and Sarah his wife, to Henderson P. Lowe, dated March 27, 1834, duly acknowledged and recorded, and conveying the same premises by the same description. Next, a deed from Henderson P. Lowe and Mary his wife, to Benjamin F. Howe, dated Nov. 11, 1834, duly acknowledged and recorded, conveying the same premises by the same description. Next, a deed from Benjamin F. Howe and wife, to Robert Steele, dated June 29,

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1835, conveying the same premises by the same description, Next, a deed from Robert Steele and wife, to Isaac Brown, dated October 20, 1845, duly acknowledged and recorded, conveying the same premises, and also lot No. 22, with a similar description, and in which the southerly bound is described as being by the northerly line or side of Thomas Burling’s lane, &c. Next, a deed from Isaac Brown and wife, to the plaintiff, dated May 5, 1836, conveying the same premises by the same description as in the deed to Isaac Brown, and in the deed of Thomas Addis Emmet to Alfred Lowe. The map of the premises, referred to in the master’s deed, was then produced in evidence. This map exhibited the premises, and lots Nos. 22 and 25 referred to in the deed, as laid out in precise measure of feet and inches, not including any part of Burling’s lane, nor any part of Fifth Avenue or Seventeenth street, which were proved to have been opened. The map contained a great number of lots', all protracted' and bounded in the same manner.

The plaintiffs then called John Randall, who testified that he laid out and surveyed the streets and avenues as laid out by the commissioners, under the act of April, 1807. The counsel then offered to prove, that for more than twenty years previous to the opening of Seventeenth street, and the streets adjacent, Burling’s lane, as laid down on the map, was an open, public, and travelled road or highway j to which testimony the defendant’s counsel objected. The court excluded the testimony, and the plaintiff excepted.

The court charged, that whether the road or lane called Bur-ling’s lane Was a public, travelled road, was immaterial under the construction wjiich should be given to the deed. That by those deeds, the' plaintiff was bounded by the northerly side or line of Burling’s lane, and therefore was not entitled to any of the land included within the boundaries of the lane. The plaintiff excepted to the charge. The jury found a verdict for the defendant.

H. E. Davies, and W. Kent, for the plaintiff.

D. Lord, for the defendant.

The only question is, whether the conveyances under which the plaintiff claims, carried the grantees in those deeds to the centre of Burling’s Lane. In the deed from Mr. Emmet, the master in chancery, to Alfred Lowe, of the 19 th of June, 1832, the premises are described as being bounded southerly by the northerly line or side of Thomas Burling’s lane. If these words in connection with the description, carry the grantee to the centre of the lane, the plaintiff is entitled to recover. If they confine him to the northerly side of the lane, he must fail in the suit. In Hammond v. McLachlan, ( 1 Sandf. Rep. 323 ,) and in Herring v. Fisher, (ibid. 344,) we took occasion very fully to consider the rule of construction, ns to the extent to which a grant of land bounded on a road or creek, carries the grantee, in respect to the adjacent ground within the road or creek. In the former case, we fully recognized the principle held in Jackson v. Hathaway, ( 15 John. 447 ,) that when land is bounded along a road, or upon a road, or running to á toad, the grantee takes to the middle of the road, but where the description is expressly limited to the hank of a river, or where it runs along the side of a road, the grant must be held to be restricted, and not to include the land to the centre of the road or of the stream. And see Child v. Starr, ( 4 Hill, 369 .) We also held, that this rule of construction applies equally to city lots and to farms in the country. In some of the reported cases of applications to the supreme court to confirm assessments, it is intimated, that in respect to this rule of construction, there is or may be a difference between city lots and country farms; but we expressly repudiated such a distinction. According to the cases cited, the words in the master’s deed “ southerly by the northerly line or side of Thomas Bur-ling’s lane,” (taken in connection with the exact metes given in the deed, and the map under which the master sold, which excludes the lane,) must be deemed to be exclusive of that portion of the lane for which this suit is brought, and limited the grantee to the northerly side of the lane.

The plaintiff, however, contends, that the deed from the Burlings to Haskin, bearing date the 23d April, 1806, is full enough to convey half of the lane to the grantee, Haskin was

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the mortgagor in the mortgage which was foreclosed, and under which, after it was prosecuted to a decree of sale, the master made the sale. If this were so, it by no means follows, that the title of the plaintiff is commensurate with that of Haskin, the grantee in that deed, and who executed the mortgage. The plaintiff makes title under the master’s deed ; and if the master did not sell or convey to him all the premises described in the mortgage, it is not competent for the plaintiff to say that the grantee in the master’s deed took a title to all the-lands described in the mortgage on which the decree of sale was entered. If the description in the master’s deed is not full enough, or if the deed is erroneous in any other respect, this is not the place or the occasion to reform it. The plaintiff prosecutes in a court of law, on the strength of his more legal title, and if the conveyance under which he claims, excludes the premises in suit, this difficulty is not answered by the allegation, that it ought to have contained it. So also, the deed from Brown and wife to the plaintiff, of the 5th of May, 1836, follows the description in the master’s deed. It bounds the plaintiff “ southerly by the northerly side or line of Thomas Burling's lane,'' referring to the map, &c., and excludes the premises in question. All the conveyances from the date of the master’s deed to Lowe, in 1832, to the date of the deed from Brown to the plaintiff, (being four in number,) follow the description of the master’s deed, and according to our construction exclude the northerly half of the lane. The plaintiff cannot, we repeat, remedy the exclusion by the position, that the master’s deed ought to have included the premises. We must confine ourselves to the inquiry, - what was conveyed to the plaintiff by his immediate grantor, not what ought to have been conveyed to a remote source of the plaintiff’s title. The plaintiff can only recover on the strength of his own legal title.

But if the description in the deed to Haskin of the 23d of April, 1806, were available to the plaintiff, notwithstanding the excluding character of the subsequent conveyance, then another difficulty would spring up in the plaintiff’s way. This deed, to be sure, bounds1 southerly by the Burling lane,’ but those further words are added, “ together with the use and privilege of the

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said lane, until the mayor, aldermen, <m<Z commonalty of the city of New York, s/iató ctmse streets to be opened running through or adjoining the said piece or parcel of land hereby granted.” The latter words show pretty conclusively, that it was the intention of the grantor to exclude the lane from the principal grant. A party cannot convey land in fee, and the mere use of other land, without excluding the latter from the principal. grant. The contingency, too, contemplated by the grant has happened. Fifth avenue and seventeenth street have been opened.

We are of opinion that the plaintiff did not make out a good title to any part of the lane, and that the motion for a new trial must be denied.

We have treated the case as if the lane in question were a public road or highway, which was certainly a mode of considering it most favorable to the plaintilf. We think the case is against him, on the assumption that the lane was a highway, and have not therefore deemed it necessary to consider the point taken by the defendant, that this lane was a mere private finciple & tl>n of consfmcfionTcould i&ly&SjAi. \ . way,*and that, therefore, on^irop thermit be 'helcl to exten

Motion Dr new trial denied./