1 Johns. Cas. 284 | N.Y. Sup. Ct. | 1800
The title -of N. Jones to the road in question was not a mere right of way, capable -of being conveyed by the general terms expressed in the first deed. The ways, paths, and easements therein mentioned* were incorporeal hereditaments only, and appurtenant to the. thing granted and cannot be construed to comprehend a different [*286] ^parcel of land purchased and held by a .distinct title, though appropriated to the use of a way. The first deed of the sheriff, therefore, did not convey the road to the lessor of the plaintiff. '■
1 think it unnecessary to decide, whether a deed from the sheriff, was essential to perfect the title of the lessor.
' The road in the present case, not being, in fact) sold by the sheriff in the first instance, he had no power to convey it by the second deed. His authority ceased with the execution of his writ which was complete, and he could not, by the second deed, give a right which was not" created by the sale. The second deed was wholly unauthorized, without consideration, and void.
. For these reasons, without touching the other points made in the case, I think the verdict ought to be set aside, and a new trial awarded.
I am of the same opinion. The premises certainly did not pass by the first deed; for the -lands therein described and conveyed aré accurately ascertained, by metes and bounds, and the premises are not included; and being a corporeal, as contradistinguished from an incorporeal hereditament, the road could not pass by any of the general and usual words thrown in, at the end of the metes or bounds.
Benson, J. and Lansing, Ch. J." were also of the same opinion.
Lewis, J. The following questions arise in this case.
-1. Was the deed from Apthorp to Humphrey Jones, of the' 12th of October, 1764, admissible in evidence, as forming á link in the chain of the plaintiff’s title, after he had produced the record of the deed to Striker, referring to the lease and release of August, 1764, without producing such lease' and release, or accounting for them?
3. Ought not the plaintiffs to have produced the record of the judgment and execution of the mayor’s court ?’
3. Was there not a disseisin of the road at the time of thé levy by the sheriff? ■ -
<" 4. Bid the road pass to the lessor of the plaintiff by either of the deeds from the sheriff, or by any- other means ?
= 1. With respect to the' first .question, 1 think the deed from-Apthorp to Jones of the 13th of October, 1764, was properly admitted in evidence, and as, .at present advised, I should also have admitted the evidence offered by the plaintiff. tending to -show a probable mistake in the date [*238] *of the deed, in order to have aided the jury in what I consider the material inquiry, as far as concerns the deeds, whether1 the- exception in'. Striker’s conveyance, and the grant to Jones, relate to the identical subject matter. Whether this was the deed referred to, or whether there had- been others, which might have been destroyed or cancelled, upon a new deed being given by way of further assurance, or otherwise, Was a question of fáct,. upon which the jury having decided,[though without, all the light they
2. Upon the second qüestion, I am of opinion that the law is with the plaintiff, and that it was sufficient to produce the record of the one judgment, and the execution thereon. The production of these documents was for the purpose of showing a legal right acquired, and the sheriff’s consequent authority to sell. Now, it is a rule of law, that where a man has two authorities to do an act, he cannot use both simul and semel, and if lie executes ope, the other is void. This rule would appear to apply forcibly to the case of writs of execution. The sheriff cannot sell upon both, where one has a priority; because the proceeds may be insufficient to satisfy both, and he cannot apportion. In such case, where the property to be levied on, is an entirety, though a levy may be made under each, he must sell on the first execution only, and that being satisfied, the surplus, if any, will go to the satisfaction of the other. Nor is he bound to declare previously under which authority he sells, because the writ of execution, which is his warrant, does not specify the time of the judgment, or of its being docketed, which in the present instance was equally important. But should this rule not apply to the case of a sheriff in its full extent, yet it must be sufficient, for the execution of a single power, to show a single authority. The recital of the two judgments in the sheriff’s deed in my opinion, does not alter the case, for as in the execution of a power by deed, it is not necessary to reter to the ’authority, when the deed would [*289] have no operation, but in the execution of such power, such a reference would be surplusage, particularly where two authorities are referred to, and one only is sufficient and proper for the purpose. And we may here apply the maxim, “ quando non valet quod ut ago, valet quantum valere potest.” (I Vent. 228 b. Go. 18 a. 1 Lev. 151. 1 Rol. 329, pi. 45.)
3. The question as to a disseisin, was contended, on the part of the defendant, to be a question of law, and therefore improperly submitted to the jury. In the case of Taylor
4. The fourth and last question involves several important considerations. First, by what act of the sheriff is his power executed ? Is it by the sale, or must it be' by deed 1 ' •
[*290] Tt is a well -established rule of law, that a purchaser under a nude power to sell, is in, under the authority creating that power, and that, therefore, the. execution of that power may be without deed, where it is not-expressly required, for the interest arises out of the estate: This was law, .as -early as the days ■ of Littleton, who in his 169th- sect, speaking of devises by custom, as he wrote long prior to the statute of wills, says,, that executors under a power to sell, may sell and make an estate by deed, or without deed, in ComVs case, (9 Rep.) it is resolved, that where,- executors sell under a power, though they do it in their own names,'this is of -necessity,- yet the vendee- is in, under-the devisor.
Appendants are by prescription ; appurtenances by grant. (Co. Lit. 121, 6.) The latter also may arise from use. If one be seised of black acre and white acre, and uses a way over white acre from black acre to a mill, river, &c., and grants black acre, with all ways, easements, &c., the grantee shall- have the same conveniency the grantor had. (6 Mod. Staple v. Heyden, p. 1.)
Nor are appurtenants, necessarily, of an incorporeal nature, but things corporeal may be appurtenant. If one has a house and land, and conveys water to the house by [*292] *pipes through the land, and afterwards sells the house with the appurtenances to one, and the land to another, the conduit and the pipes pass with the house, because they are necessary, and quasi appendant thereto, and" he shall have liberty by law to dig in the land for mending the pipes, or making them- anew, as the case may require. (Cro. J. 121; Nicholas v. Chamberlain.) Here then was a grant of a road through Striker’s farm from one part of Jones’ farm to another part of the same. Its only use wás as an easement to that farm, and from the authorities adduced, well passed with it, quasi an appurtenant.
The only remaining inquiry is, whether the road passed by the second -deed of the sheriff, if it did not by the first. In the case of Hervey v. Hervey, (Barnad. Ch. Rep. 111;) it was resolved, and from that period it has been so settled, that
My opinion, therefore, is that the plaintiff is entitled to recover, and that the defendant take nothing by his motion.
New trial granted.
.(a) An estate will not pass by a sheriff's sale., without a deed or note in wri ting signed by the sheriff. ' Simonds v. Gatlin, 2 Caines’ R. 61. Jackson v. Gatlin, 2 Johns. R. .248. In error, 8 id. 520. 12 id. 78. 13 id. 471. 1 R. S. .738, § 137. -2 id. 373, § 61. > The right of the sheriff to convey immediately upon the sale' of real estate, a title to the purchaser,, was taken away in New York, by -the act of April 12th, 1824, Which has been re-enacted in the Revised Statutes. By this statute, a rigjit of redemption is secured to the debtor, his representatives, devisees, grantee's* mortgage and judgment creditors. As to the sheriff’s certificate of sale under- this statute ; see 2.R. S. 370, 1 id. 755f,
When any thing is granted, all the means to attain it, and all the fruits and effects of it are granted also, and shall pass inclusive together with the thing, by the grant of the thing itself without the words cum pertineniiis, or any such like words. Cuicunque" aliquid conceditur, conceditur étiam et id sine quo res ipsa non esse potuit. By the grant of ground is granted a way to it, i. e. all usual ways and unless there be an usual way, then a way of necessity will pass. Shep. Abr. 4 part, 200. B. N. P. 74. F. N. B. 183. Com. Dig. Chimin. D. 2. 8 Term R. 50. Latch. 153. The incident accessary, appendant and regardant shall in most cases pass by the grant of the principal, without the words cunt periinentiis. .Sheppard’s Touchstone, Preston & Hilliard’s ed. 89, and references. Thus, a conveyance of laud by necessary legal consequence conveys the buildings thereon, and evidence will not. be received of a different intention of the grantor. Isham v. Morgan, 9 Conn. Rep. 374. By the word “ appurtenances” in a deed, a water power appurtenant to a mill passes, and any declarations of the grantor at the time of its execution that he did not convey the water right are immaterial. Pickering v. Stapler, 5 Serg. & Rawle, 107. And by the same word in a deed of five thousand acres of Pennsylvania lands, dated 1704, it was held, that the usual city lots and liberty lands passed. Hill v. West, 4 Yeates, 142. And where a block of buildings, consisting of a central building and two wings, was erected in 1808, with a piazza in. front of the central building, and side doors in the
It is a general rule that a thing corporeal, cannot properly be appurtenant to a thing corporeal, nor a thing incorporeal, to a thing incorporeal, tío. Litt. 121, h. According to this rule* land cannot be appurtenant tb land. Otis v. Smith, 9 Pick. 293. Doane v. Broad-street Association, 6 Mass. Rep. 332. (But see Ashm. 43 7. 1 Sumn. 37, 38, that it is otherwise if the intention so require.) “ In the .case Of Jackson v. Hathaway, 15 Johns. R. 454; the court say it is impossible to protect the defendant, oñ the ground that the adjoining road passed by the deed as an incident to the lands professedly granted. A mere easement may without express words, pass as an incident to the principal object of the grant, but’it would be absurd to allow the fee of one piece of land'to pass as-appurtenant to a distinct parcel, which is expressly granted’ by .precise dnd definite boundaries. And in the case of Leonard v. White, 7 Mass. Rep. 6, it was decided, that by the grant of a grist mill with the appurtenances, the soil of a way immemorially used for the purpose of access to the mill, did not pass,, although it plight, be considered' as a grant of the easement" for the accommodation-of the mill. Cro. Eliz. 704. Cro. Car. 57. 3 Salk. 40.” Per Thompson, J. in Harris et al. v. Ellicolt, 10 Peters, 25,54. See also Tyler v. Hammond, 1 Pick. 193. But a wharf as connected with flats' in. front of it, is not regarded as land within the meaning .of this rule. To a structure of this description,, flats necessary for its use, and usually" occupied with it,-may pass as appurtenant. Doane v. Broad-street Association, mi supra.
.The word “ áppúrtenañce's” is occasionally usfed in a sense beyond its strict legal-signification,'audit is to be interpreted accordingly, where such sense can be clearly established. This doctrine has most commonly been applied ;to the construction of devises, but see Ashm. 417, and 1 Sumner, 37,38.. In the case
See Jackson ex. dem. Carman v. Rosevelt, 13 J. R. 97. Jackson. ex dem. Livingston v. De Lancey, 13 id. 537. 2 R. S. 368,369.