44 N.Y. 353 | NY | 1871
Lead Opinion
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *357 The question of principle concern is the duration of the lease from North and wife to Thomas Thornton. The omission of words of inheritance, in the habendum clause, imports an estate for life only, as the law existed when the lease was executed in 1804. This is the clause in which the duration of the estate ought to have been stated according to the usual rules and forms of conveyancing. The word "heirs" which would constitute a perpetual term is not there, and this clause standing by itself, grants an estate for the life of the grantee only, and does not extend to his heirs. *359
We are not, however, confined to a consideration of that clause, in determining the true construction in this respect. Every part of the instrument may be resorted to for the purpose of ascertaining its true meaning and the intention of the parties. "In a deed, if there be two clauses so totally repugnant to each other that they cannot stand together, the first shall be received and the latter rejected." (Shep. Touch. 88, Preston's ed.)
The deed is to be construed most strongly against the grantors. The words used are their words, and if equivocal, that shall not benefit the parties using them. (Hathaway v. Power, 6 Hill, 453, 457.)
Referring to the deed, in the granting part, and in describing the premises granted, are the following words: "And also the privilege and right of taking, using and enjoying, so much of the land adjoining the said mill seat as may be absolutely necessary to, and for the accommodation of the said grist and saw mill, restricting and binding the said party of the second part (the lessee, Thornton), his heirs and assigns, to the land contained within one chain in breadth, from the bank of said creek or river, the same having been heretofore reserved by the Hon. James Duane, aforesaid." The inquiry arises, why restrict and bind the heirs if they took no estate? If the lease granted an inheritable estate, those words were appropriate, and had a direct meaning and force. If not, they are without any significance. We are not to assume that they are used inadvertently or without meaning. The word "heirs," as here used, indicates that they were to take the estate, in case the lessee died possessed of it, and were limited by the same restriction as the ancestor. The adoption of the word "heirs," in this connection, is repugnant to the limitation of the estate for the life of the lessee, arising from the want or omission of that word in the habendum clause. It occurs in the premises, a part of the lease prior to this clause, and of the most considerable importance to the lessee. It is no more probable that the word was there included unadvisedly, than that it was so omitted in the very *360 next clause of the lease. In my opinion, this use of the word "heirs," is repugnant to the construction assigning to the lessee a life estate only, as claimed for the plaintiffs by reason of the omission of that word in its appropriate place.
The rules of law, before referred to, demand this construction. It is also in harmony with the use of the estate, as one of inheritance, since the death of Thornton in 1813. The lessors have not, nor have their heirs, been in the possession of the premises or privileges granted since that period, when, if the plaintiffs are right in their claim, the term granted was at an end; nor have they ever refused to receive the rent reserved by the lease, but it has been regularly paid by the occupants of the premises as upon a perpetual lease. While I do not regard the payment and receipt of rent as an estoppel to the claim of the plaintiff, it is important evidence, tending to prove an admission of the claim of the defendant to hold the premises, under the lease, in perpetuity. The small rent reserved must have been for many years past a mere nominal sum, and had not all parties acted on the belief that the term granted was perpetual, the plaintiffs would long ago have found it to their interest to claim their legal right of re-entry. The presumption is very decided, that they acted upon the original intention of the grant, as conveying an inheritable estate, which the plaintiffs could not interrupt or determine, while the rent was paid and the covenants and conditions of the lease were performed.
The word "heirs," where it occurs in other parts of the lease, was necessary, as the law existed at its execution, to preserve a cause of action against them in case the lessee died, leaving rent unpaid, or covenants broken, where damages had accrued in his lifetime. Such a use of the word in the conditional orreddendum clause, and in the covenants of the lessee, is not therefore inconsistent with the claim of the plaintiffs.
Nor is the argument conclusive against the plaintiffs, drawn from the recitals in the granting portions of the lease, wherein it is stated that the premises are in the actual tenure of the *361
lessee, and have been reserved, theretofore, by James Duane. I use the word premises, for the reason that the grant of the privilege to erect mills carries the site or land upon which they are to be erected, by implication, and the grammatical construction applies the word "reservation" to the land as the last preceding subject, to the use of which the lessee and his heirs are restricted. Again, the word tenure, in its legal signification, is applicable to a leasehold possession for a term of years, or for life, as well as to a fee simple, which the defendants' counsel assumes that it implies. It signifies the manner of holding, only. The word "reservation" is frequently used in deeds and in statutes, as well as in common parlance, to refer to lands as well as to incorporeal rights. A similar use of the word occurs in Corning v. Troy I. N. Factory
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I prefer to rest the case for the defendant upon the use of the word "heirs," in a sense repugnant to the limitation of the term for the life, only, of the lessee.
The plaintiffs' counsel also urges that the exceptions to the legal conclusions of the judge, which were in their favor at the circuit, are insufficient.
There is a separate and proper exception to the finding that Thornton had only a life estate. Unless this legal conclusion had been arrived at by the judge, there could have been no judgment for the plaintiffs. The judge was in error as to that conclusion, and that was sufficient to reverse his judgment.
The judgment of the General Term should be affirmed, and the judgment made absolute against the plaintiffs, with costs, according to their stipulation. *362
Concurrence Opinion
I am for affirming the judgment appealed from, but for a reason so different from the one upon which my brethren have placed their judgment, that I deem it proper to state wherein we differ and upon what grounds I place my judgment. Among the reasons assigned by the respondent's counsel why the judgment of the General Term should be upheld, the first is that the words "in his actual tenure now being," used as they manifestly were as a part of the description of the premises granted, was of itself an admission on the part of North and wife that the title to the property was in Thornton, and that the only object of the grant to him was to confer upon him certain mill privileges claimed by North and wife as an appurtenant to the mill seat used by him. This is claiming for those words an interpretation never conceded to them in the connection in which they are here used, and I am not aware that such was ever before claimed to be the object of using them. It is not unusual in grants of lands or of the use of land, either before or after a description of the premises by metes and bouuds, to add by way of further and sometimes more definite description the words "now in possession of the said party of the second part." If the word "tenure," as here used, amounts to anything by way of concession, it is one on the part of Thornton that he held the mill seat for North and wife, from whom he was then acquiring a right to enjoy it in future. As the proofs stand, both parties claim under North and wife. Mrs. North is described as the daughter of the late Hon. James Duane, from whom she doubtless derived her title, and now, because after the grant of the right to use not to exceed one chain of land adjoining the mill seat, were the words "the same having been heretofore reserved by the Hon. James Duane aforesaid," it is claimed that all the rights granted to Thornton to enjoy the mill seat had been reserved to Duane, and that nothing in reality passed by the grant. A reservation in the sense in which it is claimed on the part of the defendant is not of the land granted, but of certain privileges connected with it. To support this proposition as *363 to the reservation, two things must be established: 1st. That Thornton and not North was the owner of the mill seat, and hence that nothing was conveyed to Thornton except the use of some right of North's to be used upon it. 2d. That the reservation extended beyond the right of Duane to use one chain of land. Both of these propositions must be established or the position of the defendant is not available. The first cannot be, as we have already shown, and that the second cannot is quite clear. The mill seat is described as being on the south-easterly side of Schoharie creek, near to and immediately above a bridge over the creek. The right granted was to erect upon it one saw mill and one grist mill, and then, for the purpose of operating the mills, the right was given to abut a dam against the same south-easterly side of the creek, and to extend it so far across the creek as the right of the grantors to the waters of the creek extended, and then, as an appurtenant to the mill and in no other way connected with the mill seat, the right was given to use not to exceed one chain of adjoining land, the use of which had been theretofore reserved to Duane, and to this extent and no farther can the reservation be deemed to have extended. But why should the reservation to Duane have been mentioned? He was dead and the reservation died with him. (Boon v. Miles, 21 Wend., 290, 292-3.) The next question arising as to the construction of the grant, is whether the estate granted was for the life of Thornton only, or in perpetuity. My brethren regard it of the latter character. I do not; and in this our difference of opinion consists. The grant of the right to use the mill seat is not to Thornton and his heirs; nor is there anything in the premises orhabendum part of the deed from which we can infer that the grant was for the use of his heirs. The habendum, so far as it restricts Thornton to the use of one chain of land adjoining the mill seat, is made binding upon his heirs; and the condition of the tenure is that Thornton and his heirs shall pay rent and that they shall keep the dam to be erected in good repair. One would reasonably infer from *364 reading this portion of the indenture that the grant of the use of the mill seat had been made to Thornton and his heirs, but it was not. It may be that the word heirs was omitted by mistake and the clauses to which I have referred, together with the fact that for fifty years or more, since Thornton died, the premises granted have been held as if the word heirs had been inserted, would in my judgment go far to justify a finding that there was a clear mistake in omitting its use in the appropriate place in the grant. That fact however is not found nor was the answer so framed as to render such a defence admissible. We are therefore not to look at the act of the parties to see what ought to have been in the grant or what, by mistake, was left out of it but to look at the grant as it is; it is only where the language in it is doubtful that we can look out of it and read and interpret it by the light of surrounding circumstances. There is not, so far as it relates to the duration of the estate granted, one word or expression of doubtful import; it must therefore be interpreted by what is clearly expressed in it, by legal rules of interpretation in force in 1804, when it was made. Then the word heirs, or, by possibility, some equivalent word (although it is said that "no synonym will supply its place,") was indispensable to the creation of an estate in perpetuity, and although the rule has, as stated by the late Chancellor KENT, outlived its reason, it was nevertheless inflexible when this grant was made, and until, as to future grants, it was changed by statute. (4 Kent Com., 5, 7; 1 Washburn on Real Property, §§ 52, 53, and cases there cited.) The location of the word may not be material, provided it is in some was connected with a provision that the heirs may enjoy the estate granted. (4 Kent Com., 6.) In the grant under consideration, that word is not in any way connected with such a provision. The judge at circuit was, therefore, right in his conclusion of law, that the right of Thornton in the premises was for his life only. And this brings us to the consideration of another question presented on the motion for a dismissal of the complaint, and by an exception to the report, which in *365 substance was that the defendant's title, by the adverse possession of himself, and those under whom he claims, had become a title in perpetuity, subject only to the rents and conditions contained in the lease to Thornton. Under the circumstances, we may and ought to look into the evidence in the case, and if, from the undisputed facts in it, he ought to have found it, as it is claimed to be, we should consider and decide whether, as a necessary legal result, the plaintiff's right to re-enter, except for a breach of some one or more of Thornton's covenants, had been lost by the adverse possession of the defendant and those under whom he claims, claiming in it an estate in perpetuity, subject only to the fulfillment of those covenants. From the time of Thornton's death in 1813, or at least from October 30, 1838 (when John Brown conveyed to Henry Brown and his heirs the premises in question, subject only to the rents, provisions and reservations expressed in the original lease), the possession became one under claim of title in perpetuity, subject to be divested by a failure to comply with the conditions of the grant. It may be stated, as a general proposition, that when the tenant for life has conveyed the estate in fee, the possession will become adverse from his death. (3 Washburn on Real Property, 30.) And, where no conveyance has been made, if the reversioner permits the representatives to hold, claiming as their own, beyond the time limited for bringing actions, the right is gone forever. "This is regarded as settled law." (Jackson v.Harsen, 7 Cowen, 324, 327.) "The quo animo a possession is taken, it is held, furnishes the true test of its character." In this case, judging from the undisputed evidence, the defendant, and those under whom he claimed title, especially since the deed from John to Henry Brown, a space of more than twenty-five years (if not from the death of Thornton, in 1813), possessed the premises under a claim of absolute title, subject to no other allegiance whatever than to pay $50 semi-annually, and keep the dam in repair. The defendant's title was upon record since 1838. The plaintiffs' acquiescence in his possession "is founded *366 on the presumption of the existence of some substantial reason, for which the claim to an adverse interest is forborne." (Angel on Limitations, 350.) That the relation of landlord and tenant establishes an allegiance by the tenant to his landlord, which prohibits the tenant from denying his landlord's title, is an ancient and just rule, which, in no degree, conflicts with the right of the defendant to interpose the defence of his adverse possession. Here, the original entry was for the life of Thornton, subject to the rent and duty to which I have referred. This allegiance, and no other, Thornton owed, and was bound to stand by it. After his death, the defendant, and those under whom he claims, if not from the death of Thornton, a space of over fifty years, certainly from the date of the deed from John to Henry Brown, a space of more than twenty-five years, have claimed an absolute title to the mill seat, subject to the precise allegiance under which Thornton entered. Neither he nor those under whom he claims have forsaken it, but stand by it, and the plaintiffs have acquiesced in it for a period that justifies the presumption that the character of the title has been changed to accord with what one claims, and the other, by lapse of time, has conceded. Every reason, which invoked and lead to the establishment of a limitation within which these actions should be brought, exists in this case, and, upon this ground alone, I am for affirmance of the judgment appealed from.
All for affirmance. Judgment affirmed, and judgment absolute against the plaintiffs, according to their stipulation, with costs. *367