15 N.Y. 430 | NY | 1875
The judgment cannot be sustained upon the ground or for the reasons assigned by the referee. His legal conclusions are clearly erroneous. There is no ambiguity in the description of the premises conveyed to the defendant. The boundaries of the lands granted by the plaintiff to Margery Hoppoügh, and excepted from the grant to the defendant, are well defined; and that deed, by the reference to it in the deed to the defendant, is as if incorporated in that deed, and makes a part of it. (Jackson v. Parkhurst, 4 Wend., 369; French v. Carhart, 1 Comst., 96.) The point at which the survey of the excepted land commenced was fixed and certain; the courses and distances were given with precision, and were capable of being traced and followed.; and there was no prominent monument or boundary by which the corners and distances of the survey could be controlled, or by which, if erroneous, they could be corrected. The permanent bounds and lines were entirely consistent with the courses and dist
The last conclusion of law by the referee is based upon and the natural sequence of the first two, but upon the facts found it is erroneous. He finds and decides as matter of law that the plaintiff is not entitled to the possession of any lands now in the possession of the defendant. He was in possession of the land on the east of and up to the fence extending from the highway to the lake, and which the referee regards the dividing line between the parties, and this embraced some portion of the land flowed by the waters of the mill-pond of the plaintiff at high-water mark, which were clearly excepted from the lands granted to him. The defendant availing himself of a defence purely equitable, is in the same situation as he would have been in an action to reform the deed so as to vest in him the legal title to that to which, he is in equity entitled, and asking equity must do equity. He can no more insist upon strict technical rules than can the plaintiff upon his purely legal title. The history of the title is very brief and fully explains the difficulty between the litigants. The nominal title to both parcels of land was, prior to 1849, in the plaintiff, but his father was the equitable owner of the western parcel, that now owned by the plaintiff, including the mill then standing and the mill-pond. After the death
The judgment must be reversed and a new trial granted, unless defendant consents to modify the judgment so as to give plaintiff the land covered by the mill-pond at high-water mark.
All concur.
Judgment accordingly.