125 N.Y. 683 | NY | 1890
The following is an extract from the opinion:
“ This is an appeal from the judgment of affirmance by the General Term of the Superior Court of New York, of a judgment entered upon a nonsuit at the Circuit.
“ The action is ejectment brought by the plaintiff to recover from defendant the possession of a piece of land of a little over a foot in width, on the west side of Baxter street in the city of New York, and forming a portion of an alley about six feet wide, on and running west from. Baxter street, such alley lying between two houses fronting on that street.
“ Blazi Moore was the common source' of title, the plaintiff claiming under a devise by him of land to one daughter, and' the defendant under a devise to another m the same will. In 1817 he devised to his daughter Rosanna for life a lot of land on the corner of Chatham and Baxter (then Orange) streets, about thirty feet front on Chatham street, and running from Chatham northerly along the west line of Baxter street sixty-six feet. He also devised to such daughter for her life a lot of ground on the west side of Baxter street directly in the rear of and adjoining the above-mentioned lot, and ‘being about twenty-seven feet front ’ on Baxter street, and thirty-four feet in depth. Upon the decease of his daughter Rosanna both lots, as stated by the testator in his will, ‘ shall go to and be held and enjoyed by my grandson Augustus Winter, his heirs and assigns forever, to whom I give and devise the same accordingly.’
“Moore devised by the same will to his daughter Margaret a lot of ground fronting on Baxter street, adjoining that already given to his daughter Rosanna, and bounded southerly by it, and being also ‘ about twenty-seven feet in width ’ on Baxter street, and thirty-four feet in depth.
“If the daughter' Rosanna took the precise frontage on Baxter street spoken of in the will, it is seen that she' took sixty-six and twenty-seven, or ninety-three feet in all, and in that ease the daughter Margaret took a lot twenty-seven feet
“ It is thus seen that the disputed question is, how far north on Baxter street does the land of the plaintiff continue ?
“ Upon the trial the plaintiff put in evidence the will of Blazi Moore, and it was admitted that the title of both parties came through that will. It was also admitted at the time of her death in January, 1872, Mrs. Mary Shorter was seized and possessed of the property m dispute. She was the widow of the grandchild of Moore, and she took by descent from her son the same property which Moore had devised to his daughter Rosanna for life and to his grandchild in fee.
“At the time of Mrs. Shorter’s death, the property was. covered by a brick house on the corner of'Chatham and Baxter streets, running north on the latter street forty-three feet and three and three-quarters inches. North of this house on Baxter street was another brick house twenty-one feet and ten inches wide. North of this again was a brick house twenty-five feet two inches wide, .and north of this was the alley six feet wide.
“ Taking the land occupied by the various- houses and we have eighty-seven feet and three and three-quarters inches, leaving five feet eight and one-quarter inches to bring plaintiff up to his whole ninety-three feet as claimed, and that still leaves three and three-quarters inches of the alley untouched by the plaintiff’s title. On the other hand, if the defendant be correct in his claim to commence at a point ninety feet three inches from Chatham street, that gives plaintiff two feet eleven and one-quarter inches of the alley and the defendant the rest.
“ I have been thus particular in detailing the precise condition in which the property stood when Mrs. Shorter died, because under some circumstances that condition might be of importance in determining the question arising under her will. She had been in possession of these three houses since 1850, the time of the death of her son, up to 1872, when she died. She had rented the houses since 1850. She left a will in which she devised lands to her daughter Emma L. Parmelee, in these
“ Subsequent to the death of Mrs. Shorter, Mrs. Parmelee took possession of these houses and collected rents, and, in 1876, conveyed the premises by deed to Davis Finelite, in which she described the land as being ninety-two feet six inches on Baxter street, ‘ and being the same land and premises devised to ’ her by the will of ■ her mother, Mrs. Shorter. Davis Finelite conveyed the premises to plaintiff, describing the land as ninety-two feet six inches on Baxter street.
“ The sole question in the- case arises under the devise in the will of Mrs. Shorter to her daughter, Mrs. Parmelee. An inspection of the assessors’ map shows that lot 645, of the ■Sixth ward in New York, is therein stated to be sixty-two feet ■one inch on Baxter street. The house on the corner of Chat-ham and Baxter streets is, as already stated, forty feet three and three-quarters inches, and the next one on the north on Baxter street is twenty-one feet ten inches, thus making the •exact lot of sixty-two feet one inch, with only a variance of three-quarters of an inch. It can be assumed, therefore, that the lot 645 on the map comprised these two houses. Lot 210, by reference to the assessors’ map, appears to be of a width of twenty-eight feet one inch on Baxter street, and that gives a whole width to the property on this street of ninety feet two inches; eighty-seven feet three and three-quarters inches are taken up with buildings as shown already, and the balance of two feet two and one-quarter inches takes just that amount of the six feet of the alley. In this way the alley would be divided nearly equally between the parties.
“By confining the plaintiff to the land described in the assessors’ map, no absurd, extraordinary, or so far as appears unjust or inequitable result is arrived at. The plaintiff takes all the property that is built upon and, in addition thereto, part ■of the alley which lies to the north of the portion covered with buildings. The question is whether the plaintiff must not be so confined by reason of the language contained in Mrs. Shorter’s will. She therein devises two lots of land in
“ What is the lot known as 645 ? Clearly, it is the lot as it appears on that map, and the lot as it appears on that map has ■certain dimensions, and those dimensions give sixty-two feet, one inch, on Baxter street. For what other purpose could a reference be made to the map, unless for the purpose of a description ? And how can the lot be described without stating that it is a lot as appears by the map, on the corner of Chatham and Baxter streets ? But that mere statement gives no information as to the amount of land on each street included in the lot. There must then be boundary lines' on the map to show the shape of the lot, and the only possible way to show it is to give the number of feet the land includes on each street, and place the lines accordingly. When that is done the description is sufficient for general purposes. Where such a reference is given prima facie, the description contained in the map or plan referred to is to be the boundary of the lot devised or otherwise conveyed. If it lead to no absurdity it would be presumed that the party making the reference meant to confine the devisee or grantee to the dimensions of the lot described in the plan or map referred to by him for such description. It would rest with the party challenging the' dimensions- contained in the map, to show such facts that taken in connection with the language ifsed by the testator or grantor, no one could be supposed to contemplate the result which would arise from a literal interpretation of such language. If such reference would result in the division of a house and the practical destruction of the entire value of the land devised or conveyed, a court might search for facts which would show that the reference to the plan was only to generally locate the lot as in a certain part of the city, and that the whole land of which the testator or grantor was there possessed, or the whole house which he had there owned, was to pass by the conveyance. This is said only to prevent any inference from this decision
“We would not say that a reference to a map or plan is always to be treated as of the same force as a definite, detailed description of the land by metes and bounds, feet and inches contained in the instrument itself which conveys the title and describes the land. Much must depend in each case upon the specific language used, from which the intent of the party is to be gained where a reference is made to some plan or map for a description.
“ In this case it must be assumed that the testatrix was familiar with the assessors’ map of the Sixth ward, and with the lots and their dimensions as there displayed, for she picks out the very numbers represented in them, and with such knowledge, she delibrately made the description of the lots as therein contained, the description of the land she intended to devise. The fact that neither the plaintiff nor his grantors, had anything to do with the marking of the map itself or the dimensions of the lots as contained in the map, is not of any importance. The original owner referred to such map for the description of the land which she devised, and it is xmimportant who had made the map or marked the dimensions thereon.’”
reads for affirmance.
Judgment affirmed.