1 Cai. Cas. 358 | N.Y. Sup. Ct. | 1803
delivered the opinion of the court. An application is made for a new trial, on two grounds.
1st. That the verdict was against evidence; and,
2d. That the court improperly precluded the defendant from showing that there was a mistake in the partition deed, under which the parties respectively claimed, by which the lessors of the plaintiff had more land than was intended to have been conveyed.
From the testimony, as stated in the case, it appears that Johannes Putnam, the father of the lessors of the plaintiff, and Mary Bowen, the mother of the defendant, were brother and sister, and children to Victor Putnam, under whose will, bearing date the 5th of July, 1755, they derived title. That on the 19th day of September, 1765, the children of Victor Putnam executed a partition deed, whereby lot ISTo. 1 was conveyed to Johannes Putnam, father to the lessors
Jacob Bees, a witness on the part of the defendant, swore he was 55 years old, and that as long ago as he could remember, Mary Bowen was in possession of the land now held by the defendant, and that she died in posses-[*361] sion; *she had some land enclosed in fence down as far south as the road; she used to live 4 or 500 paces south of the road, but that just before the war. she moved down close to the north side of the highway. That about 14 or 15 years ago, Johannes Putnam showed him his west line, and told him he began at the Mohawk river, and ran northerly nearly to the highway, to a pine tree, and that the land north of that was his sister’s, Mary Bowen. That when Johannes showed him this line, Mary was in possession of the land north of the road. That about seven or eight years ago, Francis I. Putnam put up a stone near the pine tree shown him by Johannes, and said that was hia corner, and that at this time the defendant was in possession of most of the land on the north side of the road, which he now holds. That the whole of the land now held by the defendant was not cleared or in fence, at the time of Mary Bowen’s death.
Jacob Hall, another witness on the part of the defendant, swore that about 36 years ago, Johannes Putnam told him his land went no further north than the road, and that Mary Bowen owned the land north of the road. That at this time, or shortly after, Mary Bowen lived near the road; she had before lived farther north. Johannes Putnam called * the witness particularly to show him where his line was.
*On the part of the plaintiff it appeared, that [*362] part of the premises in question, adjoining the road, were unimproved at the expiration of the war. It also appeared that about six or seven years ago, the lessors of the plaintiff claimed the premises, by threatening to dispossess one Peter Lawrence, who afterwards took a lease under them. But Lawrence had the possession from Jacob Rees, who held under Abraham Conyne, who, it appears, had hired it from the defendant.
The partition deed between the ancestors of the parties bears date in the year 1765, wherein lot Ho. 1 claimed by the lessors of the plaintiff, is described as beginning at the Mohawk river, and running a northerly course 36 chains, describing no monument at the termination of this line. It appears from the testimony of the surveyor, that to extend this line northerly the number of chains given in the deed, and then pursue the other given courses, would include part of the premises in question. But the testimony on the part of the defendant appears to me to be strong and irresistible with respect to the actual possession for a long series of years; and that, in fact, no possession was ever had of the premises by the lessors of the plaintiff, or their father, under that deed. And that, admitting the deed to cover the
We are of opinion, therefore, that the verdict is against evidence, and that a new trial ought to be granted.
Being in favor of a new trial, it would be unnecessary to give an opinion on the other question, did the court entertain the least doubt on the subject. The plaintiff’s deed gives 36 chains on the first line; the defendant contended it ought only to have been 29 chains, and the testimony offered and overruled, was to prove that fact: this was not .to explain any ambiguity, but was directly contradictory to the deed, and manifestly inadmissible.
See Cameron v. Irwin, 5 Hill, 272; Clark v. Wethey, 19 Wend: 320* Fuller v. Acker, 1 Hill, 473; Jackson v. Hart, 12 J. R. 77; Jackson v. Cray, 1? Id. 427; Fitzburgh v. Rumyon, 8 J. R. 375; Jackson v Britton., 4 Wend. 507