21 Barb. 398 | N.Y. Sup. Ct. | 1855
In. 1844, one John J. Kittle granted to the plaintiff a lot of land, describing it as: “ All and singular, that certain piece or parcel (or lot) of land, situated in the village of Castleton, and town of Schodack, and bounded as follows, viz: beginning at the southwest corner of the dwelling house formerly occupied by George Noyes, running east one hundred and fifty-seven feet to a stake and stones ; from thence a northwardly course two hundred and seventy-three feet to a stake and stones; from thence west or west war dly one hundred and fifty-four feet to a stake and stones ; from thence one hundred and fifty-one feet to the place of beginning, commonly called and distinguished as the ‘ Schermerhorn brick yard.’ ” The only question on the trial respected the location of the lot. Had the stake and stones, described in the deed as being at the end of the first course, existed at the execution of the conveyance to the plaintiff, or had the deed described the line as running to where a stake and stones “formerly stood,” it is conceded that no question could have arisen as to the location of the line, as the course and distance must have yielded to the monument, or ground mark; and had the monument been removed subsequently to the execution of the deed, it would have made no difference, for the party would have been at liberty to prove by parol where the stake and stones stood at the time of the conveyance. But, when the deed to the plaintiff was executed, there were no stake and stones at the easterly end of the first course, though they were put there when the lot was run out in 1812, and remained for some years afterwards. In a case respecting this line it was decided at the June term of the court, in 1848, (it being admitted that the stake and stones had been removed several years before the deed from Kittle to the plaintiff was executed,) that the line could not be run to where the stake .and stones formerly stood, but that the next call in the deed, viz: the course and distance, must govern; that it was not a case of latent ambiguity in the deed, susceptible of parol explanation, and if it was the intention of the parties to run the line to where a stake and stones formerly stood, and the language used was the result of mistake, the only relief of the party
Courts are to so construe the words of a grant, if possible, as to give effect to it, if it be plain that the parties intended it should be an .effective conveyance. In the construction the expressed will of the parties is to control. If this be plain upon the face of the instrument, courts are to go no further, though the words used frustrate the grant itself Where the expression of the intent is doubtful and ambiguous, the most material and certain among the evidences of intent, are to be selected and accredited. That which is most material and most certain in a description shall control that which is less material and less certain. (Doe v. Thompson, 5 Cowen. 393. Newcome v. Ryor, 7 Wheat. 10.) If by the words of the instrument the grant may be ascertained and located, parol evidence for that purpose is unnecessary and inadmissible. It is only when it becomes necessary to ascertain the subject or object to which the instrument refers, or there is not enough in the description to locate it, or part of the description is false, that evidence aliunde is admissible. As a general rule, when a deed describes land by course and distance, and also by known visible monuments, the latter govern; and natural will overcome artificial monuments. Where no monuments exist resort must be had to the next most certain call of the deed. This is, ordinarily, course and distance; but not invariably so. If there are other more certain evidences of the intent of the parties, or if by a resort to courses and distances exclusively, the result is to frustrate the grant, whilst the description contains other matter to render the intent entirely certain, it is not an unbending' rule that the
On the trial, the principal proof was on the question of the location and extent of the lot of land commonly called “'.the Schermerhorn brick yard.” This question of fact seemed to be almost the only controverted one. Evidence bearing upon the question was received without objection ¡ and an examination of the case can leave no doubt that the defendant Hogeboom’s barn was erected on what for a great number of years had been designated as the Schermerhorn brick yard lot. The piece of land had been located as a brick yard for over thirty years prior to the deed to the plaintiff, and had been owned and actually possessed by the Schermerhorns and their assignee for more than twenty years of that time. At the conclusion of the trial, the judge refused to nonsuit the plaintiff, and strike out the evi
New trial denied.
Parker, Harris and Wright, Justices.]