144 N.Y.S. 340 | N.Y. App. Div. | 1913
On the 4th of October, 1909, the plaintiff, through an agent, entered into a written agreement with the defendant by which the defendant agreed to sell and the plaintiff to purchase a tract of land located at Carteret, in the township of Wood-bridge, Middlesex county, N. J. The boundary as set forth, so far as material, is as follows: “Beginning at a point in the waters of Staten Island Sound measured at right angles 300 feet southerly from the Arrowsmith line and running along said waterway of Staten Island Sound; * * * the exact amount of said acreage to.be determined by the official surveyor of the New Jersey Title Guarantee & Trust Company at the time of the passing of this title, and to be paid for at the rate of $7,000 per acre. It is further understood and agreed between the parties hereto, that the party of the first part will, at his own cost and expense, within thirty days from the passing of the title, cause to be conveyed to the party of the second part the riparian grant in front of said property for a distance of 487% feet, which deed is such a deed as is made by the State of New Jersey for riparian grants. The party of the first part agrees to furnish a deed for the upland, free of incumbrance, the title to be passed * * * on or before the 8th day of October, next.”
On October 8, 1909, the defendant executed a deed conveying the premises to the plaintiff, the description reading as follows: “ Beginning at a stake in the easterly right of way line of the New Jersey Terminal Bailroad Co., said stake being distant southwesterly 40 feet measured along the easterly right of way line of the New Jersey Terminal Bailroad Co. from a point
The complaint alleges that prior to the passing of title as provided in said contract, the parties thereto agreed to employ one Franklin Marsh, a surveyor, to make the survey of said property to determine the acreage, and said Marsh did- accordingly survey said property and prepare a map showing the courses and length of the respective boundary lines thereof; and said Franklin Marsh certified on said map that said property contained 17. 02 acres. This allegation is admitted by the answer.
The complaint further alleges: “In said deed, Exhibit B, delivered by defendant to plaintiff as aforesaid, the northerly line of said property is described as running from a certain iron pipe 1606 feet to the high water line of Staten Island Sound and the southerly line of said property is described as running from a point in the high water line of Staten Island Sound 1591 feet to a certain gas pipe driven in the ground, which are the distances said lines are indicated as extending on said map made by said Franklin Marsh and plaintiff paid the
The complaint further alleges that the riparian grant alluded to in the deed was made to plaintiff by the State of New Jersey and that the total amount paid by him under the contract and agreement and deed was $119,140, which is at the rate of $7,000 per acre for 17.02 acres. This is also admitted by the answer. The complaint further alleges that subsequently to accepting said deed and paying for said property, plaintiff learned, and the facts are, that the northerly line of said property instead of extending 1,606 feet from said certain iron pipe to the high-water line of Staten Island sound, in truth extends but 1,384.4 feet; and that the southerly line of said property instead of running from a point in the high-water line of Staten Island sound 1,591 feet to said certain gas pipe driven in the ground, in truth runs but 1,348.94 feet, and that the survey made by the said Franklin Marsh was erroneous and incorrect in said particulars, and that the number of acres conveyed by defendant to plaintiff by said deed, Exhibit B, was in fact but 14.499 acres instead of 17.02 acres; that, by reason of relying upon the said erroneous survey, plaintiff paid to the defendant by mistake at the rate of $7,000 per acre for 2.521 acres of land more than was contained in the property to which he obtained title under deed, Exhibit B; that by reason of such overpayment defendant is indebted to plaintiff in the sum of $17,647, payment of which was duly demanded and refused, with interest from the 8th day of October, 1909, for which he demands judgment.
It is quite clear, reading these documents contemporaneously executed, that what the parties had in mind was solely the purchase and sale of upland which was to be paid for at $7,000 per acre. The deed was passed and the money
If, then, both parties were mistaken and the survey was erroneous and the high-water mark had been wrongly located and there were as matter of fact only 14.499 acres of upland in the parcel, the plaintiff has a clear right of action to recover back the overpayment in an action for money had and received to the plaintiff’s use. Three separate defenses originally set up by the defendant were demurred to by the plaintiff as insufficient in law. The Special Term sustained the complaint and struck out these defenses (71 Misc. Rep. 253), and on appeal to this court this decision was affirmed on the opinion below. (144 App. Div. 928.) In that opinion it was said: “ Where money is paid under mutual mistake of fact, it may be recovered after demand in an action for money had and received. While proceeding on equitable principles, this is a common-law action. (Weston v. Brown, 158 N. Y. 360.) * * Money in the hands of one person, to which another is equitably entitled, may be recovered in a common-law action by the equitable owner upon an implied promise arising from the duty of the person in possession to account for and pay over the same to the person beneficially entitled. ’ (Roberts v. Ely, 113 N. Y. 128, 131.) The law ‘implies a contract on the part of the plaintiff to repay it to the party from whom he had wrongfully obtained it.’ (Andrews v. Artisans’ Bank, 26 N. Y. 298, 301.) * * * The money was paid in New York, demanded in New York and refused in New York. The cause of action, therefore, arose in this State. It is based, not on the mistake of the surveyor, but on the mistake of the parties in relying on that survey as to the
George v. Tallman (5 Lans. 392) was an action to recover the amount of an overpayment upon a contract for the sale of real estate. Defendant contracted to sell a parcel of land to plaintiff,- the quantity and particular description of which were unknown to him, by a written contract for the sum of $40 an acre, subject to measurements. In pursuance of said contract defendant caused said land to be surveyed by a professional land surveyor. By the survey the quantity of land contracted to be conveyed by said contract appeared to be forty-one and twenty-seven one-hundredths acres. Belying on the accuracy of said survey, and in ignorance of any mistake or error therein, the plaintiff paid for the forty-one and twenty-seven one-hundredths acres at the rate of $40 per acre. Defendant gave a full covenant warranty deed to his agent to deliver to plaintiff on final payment containing a description according to said survey and stating the number of acres at forty-one and twenty-seven one-hundredths, more ór less, and reciting the gross consideration of $1,650.86. On payment of the last installment of the purchase money defendant’s agent tendered said deed to plaintiff, but he refused to accept the same on the ground that it did not comply with the contract. Afterward the plaintiff, being in possession of said premises under said contract, conveyed by warranty deed to one Bau, the deed containing the description according to said survey and conveying the land as forty-one and twenty-seven one-hundredths acres, more or less. This deed was delivered to Bau, who entered into possession. Afterward said land was surveyed by another surveyor at the request of plaintiff and said Bau, and a different description given by him of the land from that contained in the former survey bill, and the land stated by him to contain thirty-one and ninety-seven one-hundredths acres only. After said survey plaintiff and his wife executed and delivered to said Bau another deed dated as of the date of his former deed containing a description according to the last survey and intended to be an amended or substituted deed for the
In Graves v. Brinkerhoff (4 Hun, 305), sometime prior to March, 1867, defendant made an oral agreement with the plaintiffs for the purchase of a piece of land. The quantity thereof was unknown. The price agreed upon was $115 per acre. Pursuant to such agreement the land was surveyed and a map thereof made. After the survey was made and a map thereof furnished, a written agreement was entered into in March, 1867, in and by which the parties undertook to ratify their previous oral agreement for the purchase and sale of said land. In this agreement the description was copied from the surveyor’s map and the figures thereon. The contract was executed by the delivery of said deed, the payment of a portion of said moneys mentioned in the contract and by execution and delivery to the defendant of a bond and mortgage for the balance. Plaintiffs and defendant supposed the number of acres mentioned in the contract and deed to be correct, and never knew of the mistake until the latter part of the year 1873, when the plaintiffs had occasion to have a portion of the lands resurveyed and then it was for the first time discovered that instead of forty-one and eighty-four one-hundredths acres, as set out in the contract, the land sold by the defendant measured but thirty-seven and forty-one one-hundredths acres, of all of which
Wilson v. Randall (67 N. Y. 338) was an action to recover a sum alleged to have been overpaid by mistake upon the purchase of a piece of land. The parties agreed upon the boundary lines and upon the price per acre, and a survey thereof to ascertain the quantity was to be made by defendant. A surveyor was agreed upon; he made the survey and reported that there were fifty-four and fifteen one-hundredths acres within the boundaries agreed upon. A written contract was accordingly executed in which, after description of the land by metes and bounds, was the following: “ Containing fifty-four and fifteen one-hundredths of an acre, be the same more or less, for the sum of $350, which the said party of the second part agrees to pay,” etc. In pursuance of the contract a deed was executed and delivered. It was discovered that there were in fact but forty-eight and forty-seven one-hundredths acres of land. Andrews, J.: “It was found by the court as a fact, and the oral testimony of the negotiation prior to the execution of the contract of sale leaves no room for doubt, that the intention of both parties was that the purchase and sale of the land should be by the acre, and that
A suggestion is made that a surveyor having been agreed upon to ascertain the actual number of acres of upland to be conveyed, he became thereby an arbitrator or referee and that in the absence of fraud his decision was conclusive upon the parties. But there was no controversy to refer or to arbitrate. No judicial functions were bestowed upon the surveyor.
And so in Hale v. Handy (26 N. H. 206) where, under a contract for the sale of logs, the timber was to be measured by a person named, evidence to impeach said person’s measurements was objected to, but the court upon appeal said: “We do not consider him as occupying the position of a referee, in the ordinary sense of that word. It is true, he must, to a certain extent have exercised his judgment, for it is difficult to suppose a case where that must not be done. But his duty was ministerial rather than judicial in its character. He was to measure a quantity of logs as fire-wood is usually measured, and to hold that he was invested with the powers of an arbitrator would be to give him a character which, we think, the parties never intended.”
No such quality of final arbitration was permitted to the survey of the surveyors in the cases in this State cited supra. The law of the case, therefore, seems to us to be settled in favor of the plaintiff, and the sole question open to be one of fact, namely, how many acres of land was contained in the parcel of upland, and that depended upon where the high-water mark was located. *
The ancient rule of the common law is that the title of owners of land bounded by the sea or by navigable rivers where the tide ebbs and flows extends to ordinary high-water mark only. This is the settled rule in New Jersey, where the land conveyed by the instruments under consideration was located. (Arnold v. Mundy, 6 N. J. Law, 1; Gough v. Bell, 22 id. 441; New Jersey Zinc & Iron Co. v. Morris Canal & Banking Co., 44 N. J. Eq. 398; Yard v. Ocean Beach Assn., 49 id. 306;
In the New Jersey Zinc & Iron Co. Case (supra) the court said: “ A person acquiring title to land abutting on a navigable stream takes title only to the high water line, and that line is limited by the outflow of the medium high tide between the spring and neap tides.” And in Ocean City Assn. v. Schriver (supra) the court said: “ The cases and text books have so uniformly adopted the principle that the line of ordinary high tide at the time of the conveyance ‘ governs and decides the question as between vendor and vendee ’ that further citation is unnecessary.”
The surveyor whose survey was in question in the case at bar was not put upon the stand by the defendant to explain or justify his measurements. The plaintiff produced a number of witnesses and established the ordinary high-water mark as of the time of the conveyance, and in conformity with his claim, by satisfactory and preponderating evidence. The determination of this line, and, consequently, the actual amount of upland conveyed was, under the pleadings and upon the proof, for the jury. The jury resolved the question, as it seems to us, in accordance with the evidence and the weight thereof, in favor of the plaintiff. We have examined all of the questions argued and submitted by counsel but find no reason to disturb this judgment.
The judgment and order should, therefore, be affirmed, with costs and disbursements to the respondent.
Ingraham, P. J., McLaughlin, Laughlin and Scott, JJ., concurred.
Judgment and order affirmed, with costs.
Code Proe. § 372; now Code Civ. Proe. § 1279.— [Rep.