77 N.Y.S. 24 | N.Y. App. Div. | 1902
Lead Opinion
This action was for the specific performance of a contract for the sale of real property by which the plaintiff agreed to sell, and the defendant to purchase, a plot of ground on the southerly side of One Hundred and Twenty-sixth street, 150 feet west of Amsterdam avenue. The defendant claimed that the plaintiff was not able to convey a marketable title, and the court below so decided. There is no dispute as to the facts, the question depending upon whether a deed executed by Jacob Schieffelin and wife and others to Thomas Buckley, dated August 28, 1811, conveyed the westerly half of a street laid out upon a map in relation to which this property was conveyed and known as Phineas street. It seems that a large piece of property which includes the premises in question was conveyed to Jacob Schieffelin, John R. Lawrence and Thomas Buckley, as tenants in common, April 8, 1806. While this property was thus held in common a map of it was made and filed in the office of the register of the county of New York, in which it was laid out in lots, the lots being numbered and bounded upon certain streets also laid out on the map. The three persons who owned
By this deed SchiefEelin and wife and Lawrence and wife conveyed to Buckley the block of ground as laid out upon the map bounded by Bloomingdale road, Hamilton street, Phineas street and Blackberry alley. By a deed bearing even date therewith, Buckley and wife and Lawrence and wife conveyed to SchiefEelin an adjoining block on the other side of Phineas street. There are in the record a number of other deeds, some between these tenants in common dividing the property among themselves, and others in which the tenants in common united in conveying property laid out upon this map to third parties. In all of the deeds, except in this deed in question, the property was conveyed by the numbers of the lots as appearing upon the map, there being no description of the property conveyed by metes and bounds. The treatment of the property by the proprietors of the lots as being conveyed by the map, would indicate an intention to convey to the center of the abutting streets. By the conveyance from Buckley and wife and Lawrence and wife to SchiefEelin, dated and acknowledged upon the same day that the deed of SchiefEelin and wife and Lawrence and wife to Buckley was dated and acknowledged, and which conveys to SchiefEelin a block of ground on Phineas street adjoining the block conveyed to Buckley by his cotenants, the description conveyed the easterly half of Phineas street. It is claimed by the defendant, however, that the deed of SchiefEelin and Lawrence to Buckley, made upon the same day, excluded the westerly half of Phineas street, leaving the fee of this street still held in common.
These tenants in common having united to convey the easterly half of Phineas street to one of their number in severalty, it would seem to follow that they did not intend to reserve the fee of the westerly side of Phineas street. If, in dividing this property, it appeared that it had been the custom of the cotenants to reserve the fee in all of the streets, there might be some object in
The actual situation in this case when this grant was made was that three persons owned a tract of land as tenants in common, which they had caused to be surveyed and laid out in lots and blocks with intervening streets. Commissioners had been appointed to make a map or plan of this part of the city of New York and to lay out streets and avenues therein.(Laws of 1807, chap. 115), and streets in this locality had been laid out which were not in accord with the streets as delineated upon this map; the map or plan of the city of New York having been made and filed April 1, 1811,
The question is whether there was included in this description the westerly half of Phineas street. The parties owning the fee of Bloomingdale road and Hamilton street, and commencing their line at the corner of Bloomingdale road and Hamilton street, that point would have been undoubtedly at the intersection of the center line
It is hardly necessary to examine the eases which have discussed the vexed question as to just what form of description will include the fee of a street in a conveyance of the abutting property. In each of the cases to which our attention has been called in which the fee of the road has been held to be excluded the description was quite different from that in this case. In Deering v. Riley (before this court in 38 App. Div. 164, and the Court of Appeals in 167 N. Y. 184; sub nom. Deering v. Reilly), the defendant was a squatter, claiming no title to the property, and the plaintiff was the grantee of one of the tenants in common who united in the conveyance of this property in question. The property was a part of Bloomingdale road, a public road which appears to have been open to the public at the time of the conveyance; and the question arose under a conveyance made by all three of the tenants in common of this piece of property, to one Brass, of a piece of property on the easterly side of Bloomingdale road. The property conveyed to them commenced on the northeast corner of Blackberry alley, on the southeasterly side of Bloomingdale road, and thus the starting point expressly excluded the fee of Bloomingdale road, and it was because of that fact that no part of Bloomingdale road was included in the conveyance — as the northeasterly corner of Blackberry alley must, the Court of Appeals said, of necessity be deemed to be where its northerly line intersects the easterly line of Bloomingdale road, a description distinctly different from that in question. If the starting point in the description in this case had been on the easterly side of Bloomingdale road and the north side of Hamilton street, and the line had run thence to the west side of Phineas street, a different question would be presented. But here the line commenced on the corner of these two streets and, no mention having there been made of the side of the streets, the inference would follow that the point of commencement
I think, therefore, the judgment appealed from should be reversed, with costs to the appellant, and as the facts are all conceded, judgment should he directed for the plaintiff for a specific performance of the contract, with costs.
Van Brunt, P. J., Patterson and Hatch, JJ., concurred; Laughlin, J., dissented.
Dissenting Opinion
The action was brought for the specific performance of a contract by which the defendant agreed to purchase of the plaintiff certain lots on the southerly side of One Hundred and Twenty-sixth street, west of Amsterdam avenue. The defendant refused to complete the purchase upon the ground that the plaintiff’s record title to part of the premises was not good. It is not claimed that plaintiff has acquired title by adverse possession, and the sole question presented by the appeal is whether the plaintiff owns the fee to the northwesterly half of Phineas street abutting on the lots in question as said street was originally plotted and surveyed for the owners by Adolphus Loss. On the 8th day of April, 1806, a large tract of land in this vicinity, including the lots in question and the premises within the lines of Phineas street, was owned by one Mollenaor, and on that day he conveyed the same to Jacob Schieffelin, Thomas Buckley and John R. Lawrence as tenants in common. They employed Loss, a surveyor, to make a map subdividing the premises into lots and delineating streets thereon and they caused this map to be filed. They sold many lots upon the different streets, and finally upon the 28th day of August, 1811, they partitioned their remaining lots.
I think that the language employed in this description necessarily excludes the fee. The language is plain and unambiguous, and leaves no room for the application of the presumption that the owner intended to convey the fee to the middle of the street. It is claimed that the point where the description commenced is left sufficiently in doubt to warrant the application of this presumption which ordinarily prevails. I am in favor of giving that presumption full force and effect, hut I fail to see how it can be applied, here without overruling many decisions of the Court of Appeals and unsettling the law as it has been long administered by our courts. It is conceded that the grantors and the grantee in this conveyance owned the fee to the center of the Bloomingdale road and also the fee to the other streets specified in the description. It is contended that the point of commencement is the point of intersection of the center line of Hamilton street with the center line of the Bloomingdale road. It will be observed that the description commences “ at the corner of the Bloomiugdale Road and Hamilton Street.” I think
I think it as well settled in this State as any rule of law can be,, that where a conveyance expressly provides that the boundary line runs along a particular side of a street it means the exterior line of the street on that side, and excludes the fee. (Blackman v. Riley, 138 N. Y. 318; Deering v. Reilly, 167 id. 184; English v. Brennan, 60 id. 609; Kings Co. Fire Ins. Co. v. Stevens, 87 id. 287.)
Following the first boundary line which, if these views are sound, is the northeasterly line of Hamilton street, we find that the conveyance recites that this boundary runs “ about five hundred and thirty-five (535) feet to Phineas Street; thence northeasterly along the northwest side of said Phineas Street about two hundred and forty-six (246) feet to Blackberry Alley.” Here it will be observed that the boundary line at Phineas street is the northwest side of that street,. which I think is equivalent to the northwest line of the street. On the map to which the description relates, along the northeasterly line of Hamilton street and about midway of the block we find the figures “ 535 ” which undoubtedly indicate the distance between the. Bloomingdale road and Phineas street; and, by a computation from, the figures on the map which we think indicates the length and width
It is urged that the important part of this description is the reference to the lots and lot numbers. That is important, and of course the rule is well settled that a conveyance by lots, where the grantor owns the fee to the center of a street, passes such fee. But where the conveyance by metes and bounds excludes the fee, I do not understand that such description is overcome by a subsequent statement in the conveyance that it is intended to convey certain lots as plotted. In the Deering Case (supra), and in many other cases, the conveyance was both by metes and bounds and by reference to lot numbers and the description by metes and bounds was deemed controlling.
There is nothing in the surrounding circumstances sufficiently controlling to indicate a different intent from that evidenced by the language employed in the conveyance. It is true that in many instances the parties had previously conveyed by descriptions which carried the fee to the center of the streets; but they followed no uniform rule as is manifest by the Deering Oase in which the Court of Appeals construed one of their conveyances which has been received in evidence in this case as not conveying the fee. In 1807 they conveyed to the city the fee to Manhattan street. If we are able to speculate as to the intention of the owners, I think it is quite probable from this record that they intended to exclude the fee and deemed that they would be all interested in the streets on account of the respective conveyances in partitioning their lands, and that some day they might desire to deed them to the city ; but, as has been observed, the meaning of the language of the conveyance is plain and it is free from ambiguity and must be given effect regardless of whether or not it correctly expresses the intention of the grantors.
It follows that the judgment should be affirmed, with costs.
Judgment reversed, with costs, and judgment directed for plaintiff, with costs.