7 Johns. 238 | N.Y. Sup. Ct. | 1810
Lead Opinion
This is a motion on the part of the plaintiff to set aside the verdict, and for a new trial.
In considering the present motion, I shall take in one connected view such facts as have been presented to the court upon the former as well as upon the present motion, which remain uncontradicted.
Lots No. 15. and 16. in the patents in question, join each other, according to the map in the secretary’s office ; and the patents for those lots respectively refer to the map, and then describe each lot by courses and distances. But the courses and distances do not correspond with the map, and no doubt there is a vacant piece of ground (being the premises in question) lying between lots No. 15. and 16. provided those lots be located according to the courses and distances actually run, and the monuments actually established in the original survey made before the issuing of the patents. There was a "supernumerary lot actually surveyed by Wattles, who run out the lots in the year 1785; and he run out 17 instead of 16 lots, and then, upon the map which he returned to the government, he omitted the 17th lot; and he took a patent for lot No. 16. and that patent, upon the face of it, and according to the map to which it refers, included the supernumerary lot.
It was, then, the mistake or the fraud of Wattles, which laid the foundation of the present controversy. Wattles conveyed lot No. 16. to John Harper, shortly after the date of his patent, and Harper, on the 10th July, 1790, conveyed lot No. 16. to James Hawley, from whom the lessors of the plaintiff derive title, and on the 12th July, 1793, a tract of land, described by metes and bounds, and containing 250 acres, and being the premises in question, to Ansyl M'Call, from whom the defendants derive title. The manner in which lot
There is no doubt that when yames Hawley purchased lot No. 16. in 1/90, he took possession according to' the original survey, and thus practically defined his bounda- :?1 ries. It was proved, that when M'Call took possession of the premises under his purchase from Harper in 1793, the Hawleys were in possession of lot No. 16., and they said that a certain hemlock tree was their boundary. This hemlock tree was one of the corners of lot No. 16. according to the original survey, and in exclusion of the premises. The premises lay north-west of this boundary, and yames Hawley told a witness where his line extended to, - and that it did not extend to the premises. These were the declarations of the owner of lot No. 16., cotemporary with the purchase and settlement of the premises by M'Call, The next owner of lot No. 16. was
Wattles, the patentee, and every person without exception, who has derived title from him, have acknowledged and acted upon the distinction between lot No. 16., as it appears upon the map, and the premises. Wattles himself created this distinction, and Harper, who took under him, supported this distinction, by his separate deeds to Hawley and to M'Call, and we have sufficiently noticed the declarations and acts of the subsequent purchasers.
Upon every view of this case, the court are accordingly of opinion, that the motion on the part of the plaintiff for a new trial ought to be denied.
Dissenting Opinion
When this cause was be-, fore us, on a former occasion, (4 Johns. Rep. 140.) we all agreed that the premises in question were included within the boundaries either of lot No. 15. or of lot No, 16.; and that, as the lessors of the plaintiff had shown a title for both these lots, they had a right to recover, unless they had concluded themselves by establishing different boundaries from those given in the letters patent. The written agreement between Goodrich and the defendants, for the purchase by the former of fifty acres of the land, which was then supposed to lie between lots No, 15. and 16., was offered in evidence, on the former trial, as one, among other circumstances, to establish-that the lessors of the plaintiff had thus concluded themselves ; but the judge overruled it. We supposed that this agreement was admissible on the ground that “ it might have been followed up by acts which would conclude Griswold, and those who derive title, under him, from claiming the premises as within either of the lots ■and' therefore lest “ the defendants might have forborne to ^pffer similar or inferior evidence of acts,” &c. we awarded a new trial. Although the court did not ex-
But waiving what we before said on this subject, let us consider the cause as it now stands. The question is whether, upon the facts before us, the present claimants have said or done any thing, or acquiesced in what has been done by others, so as to devest themselves of their title to the lands in controversy. There being no dispute about the facts, this is a question of law. Owing to some cause which is not explained, and about which we are left entirely to conjecture, the person who surveyed the lots in "question committed an error which created some confusion in relation to the line between No. 15. and No. 16. Goodrich, who resided in Connecticut, was ignorant of the true extent of lot No. 16., and therefore agreed to purchase the 50 acres mentioned in the case from the defendants. Those from whom Goodrich derived his title were also deceived with respect to the true line of division between No. 15. and No. 16. and expressed an opinion that neither lot embraced the premises in question. Some few years ago the error under which the proprietors of these lots laboured was detected, and the defendants now set up this misconception of the lessors of the plaintiff as a defence in this action, and the court consider the defence to be valid. This is going much further than we have ever yet gone, and, in my opinion, to a most dangerous length. The extent which we have hitherto gone is,, that when two persons, already having a title, have settled the line
There is another view of this subject which, it appears to me, is equally conclusive against the defence which is relied upon. There can be no doubt that the lands in question fall within lot No. 16. One set of the lessors of the plaintiff derive title to that lot from John Harper by his deed of July, 1790. Harper had no title to No. 15. All the right he had was to No. 16,, and the whole of that, as described in the letters patent, he had conveyed to James Hawley three years before the conveyance to Ansyl M'Call, under whom the defendants claim. The parties thus derive their title from the same source. The defendants are in no better situation than Harper himself would have been if he had remained in possession of the premises, and the present action had been commenced against him. Now it would seem to me that Harper never would be permitted to avail himself of the defence.insisted
If I understand the argument of the counsel for the defendants, they rely in a great measure upon the evidence of adverse possession, considering probably (as I most certainly did) that our former decisions (for this is the third time this cause has been before us) had disposed of every jother point. There is no force in this objection; and the only reason why I omit going fully into a consideration of this part of the case, is, because I have never understood my brethren, in conferring with them on this subject, that they placed their opinion at all on this ground. My opinion is, that the verdict is against law, and ought to be set aside, with costs to abide the event.
Motion denied.