19 Wend. 320 | N.Y. Sup. Ct. | 1838
By the Court,
Taking the title to the defendant’s farm to cover no more than what is confessedly included in the written boundaries of the deed given by the plaintiff to Ephraim Wethey, and under which the defendant claims, there can be no dispute that his defence is an utter failure. The place of beginning mentioned in the deed is agreed upon by both parties. From that the deed goes round the farm by specific courses and distances: and provided these are to be followed, the deed clearly comes short of the locus in quo. It belongs to the plaintiff. Such is the deed, the written title under which Ephraim Wethey entered, and which he and those claiming through him down to the defendant have asserted as the evidence of their right to the very period of the trial. The beech tree monument and the stakes mentioned in the deed are gone. Some evidence was given on the trial in respect to the position of the beech tree, but none which located it far enough west to
Reading and applying the deed acording to its language; looking at the lines and points mentioned in it, and to. all and every thing we can connect with it, there is no doubt in this case. What then is this defence ? In plain English the defendant says, “ It is true that, following the deed under which 1 have always claimed and held, I must fail. But the deed is not true. The tract intended to be granted was bounded west on the line of marked trees, and my scrivener, Mr. Haring, by mistake, stopped me with courses and-distances and the beech tree in the road, whereas he should have gone farther" west and touched and run along the line which he had surveyed for that purpose. Clark, the plaintiff, and Ephraim Wethey intended that the deed should run to and connect itself with the same line. The stopping at the end of the 25 chains, or even at the beech tree, was a sheer mistake in the deed ; and I claim to depart from, to contradict and correct it, by showing the mistake and bringing myself up through parol evidence to the marked line. I will add that the plaintiff has, for the most part of the time since the deed, been silent in respect to the marked line, and a small part of it was, on my side, cleared up to and fenced, without objection on his part, a good many years ago. I therefore ask the jury to infer, that (though palpably in the face of my written title) we have agreed on the more comprehensive boundary.” Such is the plain unsophisticated character of the defendant’s case ; and I am free to say that it contradicts, and every defence of the ■ kind has always appeared tb me to contradict at least two propositions, as well established as any in the law : In the first place, to give it effect we must override the statute of frauds. The title to the land lying between the deed and the marked line is as plainly sought to be sold by parol as if it were a mile west of the deed. In the second place, we must overrule the maxim of the common law which declares that all oral agreements of the parties in respect to the subject matter of the deed shall be merged by it, and such deed cannot be
I speak not now of those cases in which time has obliterated the monuments or boundaries of the deed, so as to leave its location a matter of uncertainty ; I speak not of cases in which the carelessness or fraud of the parties, or any other causes may have rendered it impossible to locate the deed by known monuments, or mathematical lines: where this is so, the declarations of the parties or their acts of acquiescence or forbearance were always receivable; not to contradict or control the deed, but to show where in truth the lost monuments or lines in the deed originally stood. Suppose for instance the deed appears to be bounded by stakes alone, which are no longer to be found; they have been pulled up or have rotted away ; but the party has either actually possessed or claimed according to certain lines ; such act or claim, is admissible to show where they originally stood. A certain course and distance are mentioned in the deed as terminated at an object no longer to be found, as in the instance before us of the beech tree, the line would be prima facie evidence of its position; but the parties having fixed a different one by agreement as the point where it once stood, the agreed place should control. The reason is because compasses and chains and the skill of surveyors vary, or the face of the country may have put them at fault in their surveys. Course and distance are therefore more uncertain than monuments, and if the law can fasten npon one in any way, it will control both course and distance. The acts of the parties are let in as secondary evidence to supply the hiatus which has been created by the ravages of time. But where there is no
I am fully aware that there are authorities in this court to the contrary : such was that of Rockwell v. Adams, recently reviewed in the court for the correction of errors, 16 Wendell 285. There are other cases, but I think they all substantially run into the case cited. In that there was in the deed as here, a known place of beginning and a partial location by fences between the parties on a line variant from the deed, in which they had silently if not actually acquiesced. In that there were indications of an intermediate line corresponding with the fences and acts of the parties in reference to the line, showing their belief that it was a correct one. The whole was put to the jury from which to infer a practical location adverse to the deed, and short of 25 years
But unless we suppose Adams and Rockwell to have turned entirely upon the admission of improper evidence; on the contrary, if we look to the general proofs in that cause, and suppose the court to have proceeded on the
In any view, therefore, I think there should be a new trial, the costs to abide the event.