Scully v. Sanders — 44 N.Y. Super. Ct. 89

Majority

p. 89

CORNELIUS SCULLY, Plaintiff and Respondent, v. JOSHUA C. SANDERS, Defendant and Appellant.

Headnote

CONVEYANCING.

A general clause of description in a deed is sufficient.

The following description, held good:—“Also all other lands contained within the limits of said commons, as described on said map, &c., not heretofore conveyed by the parties of the first part, &c.”

Semble, the above does not apply to sale by sheriff and other officers.

Jackson v. Delancey ( 11 Johns. 373 , affi’d 13 Id. 551), distinguished from the case at bar.

Before Curtis, Ch. J., and Sedgwick, J.

Decided May 6, 1878.

Appeal from judgment entered on verdict of jury.

The complaint alleged that the defendant wrongfully entered into and upon certain lots, land of the plaintiff, and took certain lumber.

The answer was a general denial.

On the trial the plaintiff read a stipulation that the fee simple of lands known as Harlem Commons, including the lots in question, were on May 1, 1882, vested in Dudley Selden. Harlem Commons were laid out on a map on file in the Register’s office, and the lots in question were 59 and 60 thereon.

The plaintiff offered in evidence a deed by Dudley Selden to Isaac Adriance. It recited: “Whereas the said Dudley Selden has heretofore received sundry conveyances of certain lands, known as the Harlem Commons, in the Twelfth ward of the city of New York, and has from time to time bargained, sold, convoyed and mortgaged parts thereof, and whereas, the

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title to certain other parts of said premises still remains unconveyed, a description whereof is hereinafter set forth, as appears by the lot book, as the same has been examined by the parties of the first and second parts,” and it conveyed “All the following lots, pieces or parcels of land, situate, lying, and being in the Twelfth ward, and known and distinguished as part of the Harlem Commons, and which said lots hereby conveyed are laid down on a map, said commons made by Charles Clinton, of the city of New York, surveyor, as lots, numbered and bounded as follows, lots number 1, &c., &c.” Also all other lands contained within the limits of said commons, as described on said map of said Charles Clinton, not heretofore conveyed by the parties of the first part, &c.

The defendant objected to the admission of the deed, on the ground that it does not embrace the premises in question. The objection was overruled and exception was taken.

The will of Isaac Adriance, the above grantee, devising all his real estate to his wife Margaret E. Adriance, was offered in evidence. The defendant objected on the same ground, and excepted to the ruling of the court admitting it.

The deed of Margaret E. Adriance to John Townshend, having a specific description of the land in question, was admitted in evidence, the defendant objecting on the ground that the grantor had no title.

A lease from Townshend to plaintiff was offered in evidence and received, with exception by defendant, on the ground that Townshend had no title.

Testimony was given as to the trespass and damages. At the end of plaintiff’s case, defendant’s counsel moved to dismiss the complaint on the ground “that no title to the lots in question was conveyed by the deeds and instruments put in evidence, and the plaintiff has no title to the premises, and on the ground

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that the plaintiff had no actual possession of the premises, at the time of the commencement of the action.” The motion was denied, and exception taken.

The defendant proved that before the plaintiff entered into actual possession of the premises, the defendant had taken possession of the lots, which were then vacant, and had enclosed them with a substantial fence, under a conveyance in fee of the premises to him by Gordon Burnham. It was not shown that Burnham had any title or had ever been in possession. There was no deed on record conveying the premises to Burnham.

The court charged that the plaintiff was entitled to a verdict, and directed the damages to be assessed. The defendant’s counsel excepted to the charge that the plaintiff was entitled to a verdict.

The jury found for plaintiff, and judgment was entered, from which defendant appeals.

Townsend & Mahan, for appellant.

John Townshend, for respondent.

It appeared that before the trespass complained of, the defendant had been in actual possession of the lots. That then the plaintiff entered under his landlord, Mr, Townshend, and built a small house. This was afterwards torn down, but the plaintiff was in actual possession when the defendant entered and did the damage complained of. If Townshend was the owner in fee, at the time the plaintiff was in possession, the latter had an action of trespass against defendant. And in case the defendant had no title, when in possession, he was only a trespasser as to Townshend, if the latter had title. The latter might lawfully enter, so far as the matter of title and possession between the parties was concerned.

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Any subsequent entry of defendant was a trespass as to Townskend and the plaintiff, Ms lessee.

These being the rights and obligations of the parties, the plaintiff proceeded to prove Townshend’s title.

The only question that I can perceive, that the defendant raised or called to the court’s attention, had regard to the intrinsic character of the conveyance by Selden to Adriance, and the only point actually raised was that such conveyance could transfer no title, because of the uncertainty of the description of the premises, there being no “ word of description, whereby a single inch of land, within the 290 acres composing the Harlem Commons can be located.” The argument was ‘ ‘ It is, therefore, so far as conveying any portion of said commons, inoperative and void.”

The objection does not seem valid. A general clause of description is sufficient. An ancient and most common form was all my land or messuages, &c., in such a town or county. The appellant cites Jackson v. Delancey, 13 Johns. 551 , as sustaining his position. That case referred to the certainty of description necessary in proceedings to sell taken by sheriffs, but the chancellor takes the distinction and says : “ Perhaps the case may be different, if the description in the mortgage be general, and the mortgagee sells under a power and the mortgagor will not come forward at the sale and point out and identify the lands. The sale in such a case depends upon the contract of the parties, &c.” The case affirmed the judgment of the supreme court ( 11 Johns. 373 ), and the opinion of the supreme court had said more specifically: u The general description in this mortgage is liable to no objection. A party conusant of his right may sell a mortgage, by general description, though an officer must define what he sells. The general description was : ‘ And also other the lands, tenements and hereditaments whereof

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the said William &o., was seized, &c., within the county of Ulster.” The present description is very much like it. All the land within the commons, which the party has not conveyed, is tantamount to all the land there of which he is seized.

On the trial or the argument the defendant did not raise any question as to whether, in order to show title under the deed of Selden to Adriance, it was necessary for the plaintiff to give some proof that Selden, at time of his deed, had not conveyed or remained seized of that part of the commons which is now described as lots numbers 59 and 60. That specific question has not been presented, and it is not necessary to find if it has any importance. It was not presented below, and probably, as I judge from a part of the printed brief, because it was taken for granted that the record would have disclosed no conveyance, and that that was sufficient for the purpose as against the defendant, as he did not prove any title from Selden.

The judgment and order denying motion for new trial should be affirmed with costs.

Curtis, Ch. J., concurred.