32 Barb. 381 | N.Y. Sup. Ct. | 1860
By the Court,
The plaintiff’s complaint in this action was dismissed at the trial at the Suffolk circuit, in October, 1859, upon the ground that it showed no title or right of possession to the lands and premises which it claimed to recover. The plaintiff was not entitled to a verdict unless it had a valid subsisting interest in the premises claimed and a legal right to the possession thereof, at the time of the commencement of the action. /It appeared that one Edward Dodd, on the 28th of December, 1841, was the owner in fee of the premises described in the complaint, together with other lands adjoining the same. By his deed of conveyance bearing date on that day, executed in proper form by himself and wife, of the first part, and the Long Island Bail Boad Company of the second part, and for and in consideration of the sum of one dollar, he granted, bargained and sold, aliened, released, conveyed and confirmed unto the Long Island Bail Boad Company, and to their successors and assigns forever, “ all that certain piece of land situate and being in the town of Huntington and county of Suffolk, bounded as follows : commencing at a point on the road leading from Dix Hills to Babylon, commonly called the straight path, where the second division of the Long Island rail road crosses the same, and thence along said rail road, the center line of which bears north seventy-nine degrees east a distance of 250 feet, and which said line of road is to have a uniform width of four rods, for the uses and purposes of the road proper, and comprises an area of sixty square rods. Also, in addition to which sixty square rods, the Long Island Bail Boad Company
The language of the deed, in regard to the premises in dispute, is peculiar, and widely dissimilar from that in regard to the lot first described for the principal track of the road. In respect to the latter the words are technical and artística!, and such as long usage and the best skill has selected and appropriated to the conveyance of titles to real prop'erty; while those in regard to the seventy foot lot are neither apt nor appropriate, nor such as are usually employed in deeds for the transmission of titles to real property. If the question is to he determined upon. the grammatical and literal sense of the words employed in the deed, it would he impossible, I think, to say that the words “ may he further entitled to the extra additional width of seventy feet on the south side of said rail road,” would have the effect to pass the title from the grantor to the grantee; for they do not express an absolute intention to pass a present estate at that time, in the premises. This deed is not, however, to he construed and its effect upon the title determined by looking at these words alone, nor by adhering to their strict grammatical import. But we are to ascertain, if we can, what was the intention of the parties to the deed; and this can only be done by examining and considering all parts of it. Where the grammatical sense of the words is not in harmony with the obvious intention of the parties, the courts do not hesitate to substitute one word for another for the purpose of giving effect to such intention. This rule of construction applies to deeds and wills and also to statutes. Jackson v. Blanshan, (6 John. 54,) is an example of what the courts will do under such circumstances. The question was upon the construction of a will. The testator had devised his real property to his six children, with this limitation: “ But if any one or more of my above named children should die before they arrive to full age, or without lawful issue, that then his, her or their part pr share
This deed, like all similar instruments, is to be construed most strongly against the grantor. “For the principle of self interest will make men sufficiently careful not to prejudice them own interest by using words of too extensive a meaning.” (4 Cruise’s Dig. 417, § 7.) The words of bargain and sale, granting and conveying, in the present deed, must be held to apply to the several parcels of land therein described, unless they are limited or qualified by subsequent words. The words which are thought to qualify and limit the effect
The habendum is resorted to for the purpose of ascertaining the nature and quantity of the estate which the grantee takes in the lands granted in that part of the deed technically known as the premises; for its proper office is to limit the certainty of the estate granted. “Nothing can be limited in the habendum of a deed which is not given in the premises, because the premises being the part of a deed in which the thing is granted, it follows that the habendum, which is only used for the purpose of limiting the certainty and extent of the thing given, cannot increase the gift, for then the grantee would in fact take a thing which was never given to him.” (Cruise’s Dig. vol. 4, p. 432, § 48.) The same observation may be made of the covenant of warranty. Its effect is limited expressly to assure the title of the grantee to the lands granted in the premises of the deed; for it would be absurd to make such a covenant in respect to lands the title to which still remained in the grantor. But both the habendum and the covenant of warranty are material in considering the inten
Lott, Emott and Brown, Justices.]
The order made at the special term, denying the plaintiffs’ motion for a new trial, should be reversed, and a new trial granted, with costs to abide the event.