Dibble v. Rogers

13 Wend. 536 | N.Y. Sup. Ct. | 1835

By the Court

Sutherland, J.

The judge, in his charge to the jury, stated the principles of law applicable to the case correctly. He instructed them that a long acquisecence, in an erroneous location by the plaintiff, would authorize them to find that the plaintiff had agreed to a location different from. ^at given by his deed; and whether he knew his rights or not, such location or acquisecence would conclude him; and ^ ^ íuiy were satisfied that the plaintiff had agreed to such a location, (of which his long acquiescence in the location contended for by the defendants was evidence,) that they would find for the defendants, otherwise for the plaintiff. This is the rule of law laid down by this court in Rockwell v. Adams, 7 Cowen, 762, and again, after a second argument, in-the same case, in 6 Wendell, 467. It is believed that the authorities referred to in those cases fully sustained the principle. Vide 1 Caines, 363; 3 Johns. R. S. 269 ; 7 id. 245, per Van Ness, J.; 8 id. 367; 9 id,. 100; 17 id. 29. It has again been recognized in the recent case of M'Cormick v. Barnum 10 Wendell, 104, and in Kipp Norton, 12 Wendell, 130. The acquiescence in those cases varied from the period of 17 to 40 years. In this case it was about twenty years. Those cases also show that the acts and declarations of the parties are competent evidence upon the question of location. That their admission does not conflict with the principle that a man shall not be divested of his title to land by parol declarations 6 Wendell, 469. This disposes of the objection made to the testimony of Luke Fenton, objected to by the plaintiff. Substantially the same evidence, however, was subsequently given without objection.

The plaintiff insist in one of his points that the charge was erroneous, in not stating that if the land was practically located by survey before grant, no other location could be made of such grant after it was consummated by deed. There is a confusion of terms in this proposition which renders it somewhat obscure ; but, as I understand it, it is this : that if A. sells a particular lot to 13., and it is actually surveyed and a deed given according to such survey,that the courses and distances given in such survey and deed must prevail,although in his actual practical location, in taking possession, ignorantly and unintentionally departs from those courses and distances, erects fences and buildings accordingly, and holds in this manner for any length of time. The cases already referred to sufficiently answer this proposition; and upon principle, there can be no distinction between such a case and a case where the deed is of a particular lot, designated by a number or otherwise, without courses or distances. The question cannot arise, until the fact is shown that the deed covers premises different from those upon which the party actually located; and whether the true location of the deed appears from a survey made at the time, or by reference to some anterior survey, or other ascertained fact, cannot, that I perceive, be at all material.

The evidence most abundantly supports the verdict as to the plaintiff’s uniform and long continued acquiescence in a location according to his present succession. The charge upon this point might well have been stronger in favor of the defendants. The plaintiff, at all events, has no right to complain of it. It would not be profitable to, recapitulate or analyze the evidence. As it appears upon paper, no discreet jury could have come to a different conclusion.

The deed from Daniel to Orlando Boardman was properly received in evidence. It was acknowledged by the grantor, and his identity was proved by the oath of one Benjamin Cowles. The certificate of acknowledgment was objected to by the counsel for the plaintiff, on the ground that the subscribing witness was the only proper person to identify the grantor, and also that the certificate did not state the residence of the witness who did identify the grantor. Where a deed is acknowledged,the officer taking the acknowledgment must know or have satisfactory evidencethaX the person making such acknowledgment is the individual described in and who executed such conveyance. 1 R. S. 758, § 9. The evidence of identity must be satisfactory to the officer,but it need not be given by the subscribing toitness ; nor does the statute undertake to regulate the judicial discretion of the officer in this respect. The 12th section prescribes the mode of proving theexecutionof conveyances. It directs thatproofshallbemade by asubscribingwitnessthereto,who shall state his own place of residence, and that he knew the person described in and who executed such conveyance; and such proof shall not be taken, unless the officer is personally acquainted with such subscribing witness, or has satisfactory evidence that he is the game person who was a subscribing witness to such instrument. ' Then comes the 15th section, which makes it the duty of every officer who shall take the acknowledgement or Pr0°f of any conveyance, to endorse a certificate thereof,signed by himself, on the conveyance; and in such certificate he is required to set forth the matter herein (i. e. in the statute) befo re required to be done, known or proved, on such acknowledgment or proof together with the names of the witnesses examined before such officer, and their places of residence, and the substance of the evidence by them given. Where a subscribing witness proves the execution of a conveyance, he is required by the 12th section, among other things, to state Ms place of residence. This is the only case in which a witness is required to do so under these provisions; and the direction to the officer in the 15th section, to state theplaces of residence of the witnesses examined before him, may be satisfied by requiring it in those cases only, in which the statute directs the witnesses themselves to.state it in their examination. It is true the language is very broad; and in order to avoid all question upon the subject, officers ought to state the places of residence of the witnesses. But in a case like this, I think the acknowledgment may be sustained, where' there is no other objection to it.

It was a matter of direction with the judge, whether he would permit the closing counsel, in his address to the jury, to contend that the defendants had not shown that their deeds covered the premises in question, when the fact was taken for granted, and not denied during the whole progress of the trial. The judge put it upon the ground, that if that fact was now denied, the witnesses ought to be recalled and examined in relation to it. He remarked that they had probably gone home, and that in that stage of the case it was not fit or proper to raise a new point upon a matter of fact. But it is not materia], in this action, whether the defendants showed title or not. The plaintiff must recover on the strength of his own title.

New trial denied.