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Casey v. Dunn

57 N.Y. Super. Ct. 381 25 Jones & S. 381 Court N.Y. Super. Ct. Decision date 1890-01-06 English

Delivered by By the Couet.—Sedgwick, Oh. J.

Contents

Majority

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LAWRENCE S. CASEY, Appellant, v. ELIZA DUNN, Respondent.

Headnote

Deed, construction of description in—Courses run in reference to streets opened in cities—Quasi-monuments—Adverse possession under statute avoiding deeds, what does not constitute—Practical location of boundary, what does not amount to—Deeds, what not competent on question of construction.
Where in the conveyance of a lot in a city the property conveyed is described as part of a lot laid down on a certain map and designated thereon by a certain number, and is bounded in front by a street and in the rear by a lot designated on said map by a certain number, and on each side by lines running parallel to a certain other street to the rear boundary, each of such side lines being described as of a designated length which, however, is not sufficient to carry them to the rear boundary, the length given to the side lines must give way to their course as given, and the course must control the length.
The adverse possession to render a deed made by one not in possession void under the statute, must be under claim of a specific title which is hostile to the title made by the deed claimed to be void. A claim under a deed which by its proper construction is not in conflict with the deed claimed to be void will not constitute such adverse possession within the statute.
There can be no practical location of a boundary line to affect a title under a deed, when there is in fact no doubt as to the true lines, nor where the parties actually intended that a fence claimed to constitute the practical location should be built according to the true lines.
Description contained in deeds made by persons other than the grantor in the deed, the description in which is the subject of litigation, are not competent as aiding in the construction of the description in the latter deed, the grantor in which at the time of the making of the deed owned the land in dispute and had the legal right to convey it.
Before Sedgwick, Ch. J., and Freedman, J.
Decided January 6, 1890.
Appeal from judgment entered on a verdict for defendant as directed by the court, and from an order
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denying plaintiff’s motion for "a new trial made upon the minutes. *
The locus in quo is shown on the diagram below :
Extract from map entitled “ Map of Fairmount, Upper Morrisania, County of Westchester and State of New York, made by Andrew Findlay, surveyor, dated Westchester, June 26, 1850, and filed in the office of the Clerk of the County of Westchester at White Plains.”
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On October 24, 1867, Christopher Robley was the owner of the plot of ground bounded on above diagram by the lines D. C. E. and F. On that day he and his wife conveyed to Warren C. Demarest a plot of ground by the following description: “ All that certain piece or parcel of land situate, lying and being in the Town of West Farms, County of Westchester and State of New York, being part of the lot known and designated by the number seventy-nine (79) on a map entitled map of Fairmount, Upper Morrissania, County of Westchester and State of New York, made by Andrew Findley, Surveyor, dated Westchester, June 26, 1850, and filed in the office of the Clerk of the County of Westchester at White Plains.”
The premises hereby conveyed being bounded as follows: “ Beginning at a point on the northwesterly side of Grove street, distant one hundred and seventeen feet eight inches northeasterly from the northwesterly corner of said Woodruff avenue and Grove street, running thence northeasterly along Grove street one hundred feet to lot No. 97 on said map, and thence southwesterly and parallel with Wood-ruff avenue one hundred and eight feet and ■ nine inches to lot number 80 on said map, and thence southwesterly along lot number 80 one hundred feet, and thence southeasterly and parallel with Wood-ruff avenue one hundred and eight feet and nine inches to the westerly side of Grove street, the point and place of beginning.”
On October 28, 1867, Demarest and wife conveyed to William Mills a plot of ground. The deed, after containing the same reference to lot 79 as is contained in above deed, described the property conveyed as follows: “ Beginning at a point on the northwest- . erly side of Grove street, distant one hundred and sixty-seven feet eight inches northeasterly from the northwesterly corner of said Woodruff avenue and
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Grove street, running thence northeasterly along Grove street twenty-five feet, and thence northwesterly and parallel with Woodruff avenue, one hundred and eight feet and nine inches to lot 80 on said map, and thence southwesterly along lot 80, twenty-five feet, and thence southeasterly and parallel with Woodruff avenue, one hundred and eight feet and nine inches to the westerly side of Grove street, the point or place of beginning.”
On November 4, 1867, Demarest and wife conveyed a plot to Matthew Mills. The deed contained the same.reference to lot 79 as is contained in above deeds, and described the property conveyed as follows: “The premises hereby conveyed being bounded and described as follows: Beginning at a point on the northwesterly side of Grove street distant one hundred and forty-two feet eight inches northeasterly from the northwesterly corner of said Woodruff avenue and Grove street, running thence northeasterly along Grove street twenty-five feet, and thence northwesterly and parallel with Woodruff avenue one hundred and eight feet nine inches to lot number 80 on said map, thence southwesterly along lot number 80, twenty-five feet, and thence southeasterly and parallel with Woodruff avenue one hundred and eight feet and nine inches to the westerly side of Grove street the point or place of beginning. Being part of the same premises which were conveyed to the said Warren 0. Demarest by Christopher Robley by deed, having date the twenty-fourth day of October, one thousand eight hundred and sixty-seven and recorded simultaneously herewith.”
This plot was, on the first of January, 1878, conveyed by the same description by Matthew Mills to William Mills; and was on the 17th of July, 1883, conveyed by the heirs of William Mills by the same description to Lawrence S. Casey, the plaintiff. On June 9,1883, Martha E. Reynolds (in whom the title
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seems to have vested) and husband conveyed to Lawrence S. Casey, the plaintiff, the plot of ground conveyed by the above deed from Demarest and others to William Mills, by the description in that deed contained. This constitutes plaintiff’s chain of title.
Defendant’s chain was as follows:
On April 10, 1868, Demarest and wife conveyed a plot to Samuel W. Estren. The deed, after containing the same reference to lot 79 as is contained in the above deeds, described the property conveyed as follows : “ Beginning at a point on the northwesterly side of Grove street, distant one hundred and seventeen feet eight inches northwardly from the northwesterly corner of said Grove street and Woodruff avenue, running thence northeasterly along said Grove street twenty-five feet, thence on a line parallel with Woodruff avenue, one hundred and eight feet nine inches to lot No. 80 on said map, and thence southwesterly along lot No. 80, twenty-five feet, and thence southeasterly and parallel with Woodruff avenue, one hundred and eight feet nine inches to the westerly side of Grove street, the point or place of beginning.”
Estren mortgaged this plot, by mortgage, dated April 21, 1871. The mortgage was foreclosed. On the foreclosure sale the Excelsior Savings Bank became the purchaser. The referee conveyed to the Savings Bank by deed, dated October 26, 1872. The Bank, by deed, dated July 1, 1873, conveyed to James Cassin; James Cas sin and wife, by deed dated June 10, 1874, conveyed to Michael Dugan; Michael Dugan, by deed, dated November 1, 1886, conveyed to Eliza Dunn, the defendant. The referee’s deed, and all the subsequent deeds, conveyed by the same description as is contained' in the above deed from Demarest and wife to Estren. This constitutes defendant’s chain of title.
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On the 24th of October, 1867, Demarest and wife conveyed to John Pritchard a plot of ground. The deed, after containing the same reference to lot 79 as is contained in the above deeds, described the property conveyed as follows : “The premises hereby conveyed being bounded and described as follows : beginning at a point on the northwesterly side of Grove street, distant one hundred and ninety-two feet eight inches northwesterly from the northwesterly corner of said Woodruff avenue and Grove street running thence northwesterly along Grove street, twenty-five feet, and thence northwesterly and parallel with Woodruff avenue, one hundred and eight feet and nine inches to lot No. 80 on said map, and thence southeasterly along lot number 80, twenty - five (25) feet, and thence southwesterly and parallel with Woodruff avenue one hundred and eight feet and nine inches to the westerly side of Grove street, the point and place of beginning.”
The other facts sufficiently appear in the opinion.
Shepard & Osborn, attorneys and of counsel, for appellant, argued:—
I. Defendant’s motion to dismiss the complaint was properly denied. Possession is prima facie evidence of title. It was conceded on the trial that plaintiff and his grantors had been in possession of the land in litigation from 1869 to 1887, when the defendant intruded upon him and took possession thereof. Day v. Alverson, 9 Wend. 223 ; Smith v. Lorillard, 10 John. 338 ; Carlton v. Darcy, 90 N. Y. 573 ; 46 Super. 484; Mayor, etc., v. Carleton, 113 N. Y. 284 . Admit, for the sake of argument, that Estren, prior to building the fence, had the paper title to the land in litigation. The defendant could not take advantage of that fact until she had connected herself withEstren’s title; no one but Estren
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or his grantees could say that plaintiff had not the true title, because the plaintiff and his grantors had been confirmed in the possession by Estren, and until he, or those who had his estate, turned him out, plaintiff had a good title against the world. Jackson v. Harder, 4 John. 202 ; Murphy v. Loomis, 26 Hun, 659 ; Christy v. Scott et al., 14 How. U. S. 292; Jackson v. Hazen, 2 John. 22 ; Trull v. Granger, 8 N. Y. 118 .
II. The defendant did not connect herself with the title of any person who had owned the land in litigation, and hence did not show any title thereto in herself, and was a mere trespasser. At the time of the execution of the several deeds in defendant’s chain of title, made after 1869, the land in litigation was part of a lot inclosed by a substantial fence and in possession of plaintiff and his grantors, under a claim of title adverse to that of the grantors in said deeds, therefore the said deeds were void. Ellwood v. Northrop, 106 N. Y. 173 ; Sands v. Hughes, 53 Ib. 296; 1 R. S. p. 739, § 147; 7th Ed. p. 2196; Code of Civil Procedure, § 370; Turner v. Baker, 64 Mo. 238 ; Terry v. Chandler, 16 N. Y. 356 ; Davis v. Townsend, 10 Barb. 341 ; Penn v. Lord Baltimore, 1 Vesey Sen. 444. Sneed v. Osborn, 25 Cal. 619 ; Blair v. Smith, 16 Mo. 273 .
III. —The court erred in excluding the deed from Demarest to Pritchard, because the making and delivery affords aid in the construction of the deeds to Estren and Matthew Mills. It is evident from the surrounding circumstances that in the deed from Christopher Robley to Demarest, there was a mistake in the call “ parallel with Woodruff avenue.” At that time the property in Robley’s possession was surrounded by substantial fences, one of which was along lot 97 and another parallel thereto at right angles to Grove street, and neither of them parallel to Woodruff avenue. It would have become
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manifest from the admission in evidence of the deed from Demarest to Pritchard that Demarest at the time of the conveyance to Estren did not own the land in litigation. Under a proper construction of the Pritchard deed the land conveyed thereby is marked by the lines O. N. D. C. and not 0. P. Z. C. on Plaintiff’s Exhibit 1. (1). The monument “ Lot 80” must control the call “parallel to Woodruff Ave,” it being a course. Wendell v. The People, supra. (2) The call “ part of lot 79 ” is very important. Rutherford v. Tracy, 48 Mo. 326 . (3) The call “ thence 25 feet along lot 80” cannot be carried out if the call “ parallel to Woodruff” is allowed to prevail. (4) At the time of the conveyance Demarest owned no part of lot 97. The construction answering to the lands which the grantor owned should be taken to be the true one if possible. Greenleaf on Evidence, 12 Ed., § 301 ; Jackson v. Loomis, 19 John. 449 ; Lush v. Druse, 4 Wend. 313 ; Jackson v. Marsh, 6 Ib. 281 ; People v. Storm, 97 N. Y. 364 . Length of time and adverse possession were not the prevailing grounds in Lush v. Druse. (5) The lines of long possession should control in a case of ambiguity. Preston’s Heirs v. Bomar, 6 Wheat. 580 ; Stone v. Clark, infra ; Hastings v. Clark, 36 Cal. 126 . (6) Course is of no more importance of itself in the construction of a deed than distance. The circumstances of each case must determine. Preston’s Heirs v. Bomar, 6 Wheat. 580 . In view of the facts in the case the call “ parallel to Woodruff Ave.” must be considered false description and rejected. The distance is correct. It follows that if the deed dated Oct. 24, 1867, to Pritchard is construed to convey the land O. N. D. C. that for the same reasons in the deed dated Oct. 28, 1867, from Demarest to William" Mills, the calls parallel to “Woodruff Ave.” must be rejected and the land conveyed be bounded westerly by a line drawn from
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L. to “ lot 80 ” at right angles to Grove street, and deed dated O. N. The same reasoning applies to the paralle to Nov. 4, 1867, from Demarest to Matthew Mills, and to all the deeds in plaintiff’s chain of title made after the last named deed, and their westerly lines must be held to run along the line H. I. and not parallel to Woodruff avenue. Therefore when Estern took his deed from Demarest, dated April 10, 1868, Demarest did not own the land in litigation and could not have conveyed it to Estren. To run these lines parallel to Woodruff avenue would be to abandon the long established lines of the fences (1853), and encroach on lot 97, (which Robley did not own) 9 feet 4 inches, and would conflict with the terms of the deed which called for a part of lot 79 only, and for no part of lot 97. The deed called for a line beginning at the corner of Grove street and lot 97, running parallel with Woodruff avenue to lot 80. This is an impossible line, as it would run into lot 97 and never reach lot 80. At this time lot 80 was a monument marked by a substantial fence. Wendell v. The People, 8 Wend. 183 . The error in the deed from Christopher Robley to Demarest in the call “ parallel to Woodruff avenue ” is perpetuated in the deeds Demarest to Mathew Mills, Demarest to William Mills, and Demarest to Estern, and the excluded deed from Demarest to Pritchard. The four deeds make up exactly the quantity of land conveyed to Demarest by Christopher Robley. Meyer v. Boyd, Daily Register, June 15, 1889; 51 Hun, 291 .
IV. Under a proper, construction of the deeds from Demarest the common owner to Matthew Mills and Demarest to Estren the disputed line should have been held to run at right angles to Grove street, and not parallel with Woodruff avenue. Within the following cases the distance must control the course as the line is short and can be accurately meas
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ured. Danziger v. Boyd, 53 Super. Ct. 398 ; Higinbotham v. Stoddard, 72 N. Y. 94 ; Lovejoy v. Tietjen, 47 Hun, 321 .
Y. But if the court should be of the opinion that the “ distance ” (108 feet, 9 inches) and the “ monument ” (Lot 80) do not, of themselves control the course parallel with Woodruff avenue, yet the deeds are capable of two constructions, and practical location, in accordance with one construction is of great importance in determining the intention of the parties. Danziger v. Boyd, supra, 400; Ratcliffe v. Gray, 3 Keys, 513 and cases cited ; Stewart v. Patrick, 68 N. Y. 450 ; Kingsland v. The Mayor, 45 Hun, 198 ; Dend Barring v. Van Houten, 2 Zabriskie, 68; (25 years were required to make title by adverse possession) ; Stone v. Clark, 1 Met. 378 .
YI. The defendant is estopped to deny that the line was correctly located by Samuel W. Estren along the line, at right angles to Grove street. That line had been settled by agreement at least as early as 1869, and had been acquiesed in for more than 18 years. In the following cases practical location has been deemed conclusive, and the parties estopped though made under mistake. Location for 18 years, Jackson v. Ogden, 7 John, 238 ; 3 Keyes, Ct. of App. 513 ; Location for 19 years, Jackson v. Van Corlear, 11 John. 122 . Location for 12 years, Jackson v. McConnell, 12 Wend. 422 . The case of Sandford v. McDonnell, 53 Hun, 263 , relied on by the defendant is not analogous to the case at bar. There appears to have been in that case no ambiguity or uncertainty in the deed. The survey was erroneous, not the construction of the deed. The line was acquiesced in five years only. Vosburgh v. Teator, 32 N. Y. 561 ; Cutler v. Callison, 72 Ill. 113 .
YII. The construction claimed by the plaintiff will work practical justice between the parties. The court should be astute to make such a construction.
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Jackson v. Ogden, supra, 240 . The defendant, when she bought, was notified of plaintiff's claim by the fact that plaintiff was in adverse possession of the land. She cannot complain. Demarest was alive and acquiesced in the practical location and is bound, having acquiesced for such a long time. If plaintiff prevails, the lines are made at right angles with the street. There is land enough for all parties interested, and each gets what he bought. If defendant prevails she is allowed to keep 9 feet 4 inches of land for which she has paid nothing, and the rear line of her lot will be 34 feet 4 inches long, instead of 25 feet long, as called for in her deed, while plaintiff loses 9 feet 4 inches of land for which he has paid.
Yin. The jury, from the circumstances, might have presumed a grant of the land in litigation from Estren or his grantees to the plaintiff or his grantors. Jackson v. McConnell, 19 Wend. 177 ; Miner v. Mayor, 37 Super. 189 ; Adams v. Rockwell, 16 Wend. 285 .
IX. The plaintiff showed title by adverse possession by himself and his grantors for more than 20 years prior to the commencement of the action.
Meyer Butzel, attorney, and Joseph Fettretch of counsel, for respondent, argued :—
I. The description in the respective deeds is in no way ambiguous, and Demarest, the original grantor of both parties, when he made the conveyances, had the land to answer the calls and boundaries of the respective pieces conveyed, and there is not the slightest difficulty in running the lines as specified in the respective deeds. This being so, we are bound, and must, in order to get at the intent of the parties to the conveyances in respect to the premises to be conveyed, look at the deeds themselves. Seaman v. Hogeboom, 21 Barb. 398 ; Hubbell v. McCulloch, 47 Ib. 287 ; Drew v. Swift, 46 N.
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Y. 204 ; Robinson v. Kine, 70 Ib. 154 ; Lawrence v. Palmer, 71 Ib. 607 ; Thayer v. Finton, 108 Ib. 397.
II. As to any title in the plaintiff by adverse possession. The proofs do not show any of the elements of an adverse possession under the authorities. Cleveland v. Crawford, 7 Hun, 622 ; Seaman v. Hogeboom, 21 Barb. 398 ; Hubbell v. McCulloh, 47 Ib. 287 ; Crary v. Goodman, 22 N. Y. 170 ; Pope v. Banner, 74 Ib. 240.
III. As to practical location. There was no disputed boundary and no fixing of a dividing line by agreement between the parties in interest. Baldwin v. Brown, 16 N. Y. 363 -4; Vosburg v. Teator, 32 Ib. 568; Corning v. Troy Iron and Nail Co., 44 Ib. 595; Drew v. Swift, 46 Ib. 208; Robinson v. Phillips, 1 T. & C. 154; Sanford v. McDonald, 53 Hun, 265 and 266.
IV. As to the suggestion of the plaintiff that from the time of the delivery of the deeds from Estren and his grantees to and including the one to the defendant herself, Mills and his successors and their grantees were in adverse possession, and consequently, that the deeds from Estren and his grantees were void, there is no proof of any entry •of Mills or any one else under a claim of title, by deed or otherwise, adverse to the true owner, and further says that the rule in such a case as this has been decided to be against the plaintiff’s contention. Crary v. Goodman, 22 N. Y. 170 ; Dawley v. Brown, 79 Ib. 390; Harris v. Oakley, 7 N. Y. Supplement, 232; Hallas v. Bell, 53 Barb. 248 .
V. As to the exceptions which have reference to the relations between the plaintiff and Mr. Pritchard, the owner of premises fifty feet away from the land owned by the plaintiff under the deed from Matthew Mills, it is not claimed by plaintiff that Mr. Pritchard ever had any interest in the land conveyed to either Estren or Matthew Mills, or in the lot immediately
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adjoining either, and it is submitted that the Justice was correct in his ruling.
VI. Whether Demarest when he made the deeds to Estren and Mills was or was not the owner of lot 97 was a matter of no moment. To give the lands conveyed by Demarest to Estren and Mills did not require any part of lot 97, and so it was immaterial whether he owned it or not; it was not competent, material or relevant for any purpose within the issues in the case at bar, and did not tend to show that the deed from Demarest to Mills contained the locus in quo.

The action is in ejectment. The question in the case concerns the construction of the description in several deeds under which plaintiff claims. That description is “ Beginning at a point on the northwesterly side of Grove street, distant 142 feet 8 inches northeasterly from the northwesterly corner of said Woodruff avenue and Grove street, running thence northeasterly along Grove street 25 feet, and thence northwesterly and parallel with Woodruff avenue 108 feet 9 inches to lot No. 80 on said map ; thence southwesterly along lot No. 80, 25 feet and thence southeasterly and parallel with Woodruff avenue 108 feet 9 inches to the westerly side of Grove street, the point or place of beginning.”

If this description were applied to the land itself, it would appear that the lines said to be parallel to Woodruff avenue, if protracted no more than 108 feet 9 inches, would not reach lot No. 80, by 5 inches, if protracted those' five inches further they would reach lot No. 80. For this reason the plaintiff claims that those lines should in fact be run, not parallel to Woodruff avenue, but in such a a direction that at the end of 108 feet, 9 inches they would reach lot No. 80. If this position were

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right, then the plaintiff showed as against the defendant, title to the locus in quo.

The question is, did the grantors intend that the lines should not be parallel, or did they make a mistake as to the length of those lines that can be corrected by the other terms of the deed. There is no evidence that the lines were not meant to be parallel to Woodruff avenue. There is certainty in the expression and the lines can be applied to the land as it was owned at the time of the various deeds. It is equally certain that they meant that the lines should be extended to lot Number 80, and that the northern boundary should run along that lot. - It is the necessary inference from these certainties that there was a mistake in describing the length of the parallel lines 108 feet, 9 inches, and that it was intended that those lines should extend 109 feet 2 inches. The learned judge below was correct in his construction of the conveyances.

The plaintiff was not in such an adverse possession of the locus in quo, that certain deeds offered to show defendant’s title were void under the statute. To avoid a deed for such a reason it must appear that the adverse possession was under claim of a specific title, and that the specific title is hostile to the title made by the conveyances. In the present case, there was no other specific title claimed than under the deeds that have been construed. By their proper construction they were not in conflict with the conveyances claimed to be void.

The plaintiff did not show an adverse possession that, maintained for 20 years, makes title or presumption of title. The fence was not built until 1869. Nor was there any practical location, as it is called, of a boundary which would affect plaintiff’s title. In the first place, there was not, in fact, any doubt as to the true lines, although the parties may have erred as to the correct position of the lines. In

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the second place, from the testimony given, the parties actually intended that the fence should be built according to the true and valid positions of the lines.

It was argued by the learned, counsel for appellants, that from the lines contained in conveyances of neighboring property, some of which were in evidence, and some excluded, it was manifest that the lines in question were meant to be not parallel to Woodruff avenue, but at right angles with Grove street, for the reason that in that case the lines of the deeds, under which plaintiff claims, would agree in direction with the lines of the conveyances of the neighboring land. The argument is inefficacious, because the grantors of plaintiff had the legal power to convey their property as they saw fit to describe it, although that description might not be made under a system which others used for their property.

The judgment and order appealed from should be affirmed with costs.

Freedman, J., concurred.

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