10 N.Y.S. 656 | N.Y. Sup. Ct. | 1890
The litigation in this case is over the ownership of the real estate upon which the logs -in controversy were cut. Both parties claim under Micah White, who, by deed dated April 10,1846, acquired title to about 1,775 acres in the town of Hancock, Delaware county, being all of subdivision lot Ho. 4 of division Ho. 16, in great lot Ho. 35, of the Hardenburgh patent, except a piece previously sold from the westerly end and a piece of about 25 acres on the easterly end. On the 3d September, 1851, White deeded to Ira and Hiram Gregory about 200 acres off from the easterly side of bis purchase, and running through from the southerly line of lot Ho. 4 to its northerly line. On the 18th December, 1846, White gave to James H. Sutton a written contract for about 400 acres. This lay westerly of the Gregory purchase, and extended from the southerly to the northerly line of the lot. The easterly boundary of the Sutton purchase, as described in the contract, and the westerly boundary of the Gregory purchase, as described in the deed, were identical for about half the way across the lot commencing at the southern line. The lines then diverged, the Gregory line going north, and the Sutton line going north, 25 degrees west, and each' running to the north line of the lot. This left a gore bounded on the north by the lot line, on the easterly by the Gregory line, and on the westerly by the Sutton line, and containing about 35 acres. Upon the westerly part of this gore the logs in question were cut.
It was conceded at the trial that if the descriptions in the deeds to Gregory and to Sutton were followed, the premises in dispute would not be included in either. That being so, the paper title of the plaintiff, under the subsequent deeds, became complete, unless there is some force in the point now made by the defendant that the deed to Weeks in 1855 was so indefinite in its description as not to operate to convey what had not been previously deeded or contracted as therein specified. Whatever indefiniteness there is arises from the use of the word “of” after the word “subdivision.” The same form of expression is used in the deed to White in 1846; that deed, however, containing further provisions, which placed the intent beyond question to convey the whole lot except as therein stated. There were no subdivisions of No. 4, except as made in the sales, that are expressly excepted in the deed. The total amount in No. 4 is stated, and then the exceptions are stated. Taking the whole description together, the intent is clear to convey the balance of whatever the grantor owned in that lot. The deed should be construed the same as if the word “of” after “subdivision” was omitted. The extraneous circumstances were admissible on the question of construction. Thayer v. Finton, 108 N. Y. 399, 15 N. E. Rep. 615.
It is further claimed by the defendant that he had the right to go to the jury on the question of practical location. It appears that prior to the making of the Sutton contract in 1846 the parties went upon the premises with a surveyor, and made a survey as incorporated in the contract. There is evidence from which it might be found that in August, 1851, and before the deed to Gregory, White, Sutton, and Gregory went upon the premises, and marked out a line which, instead of following the -last course in the contract to the north line of lot No. 4, followed the high lands in a more direct and northerly course to the north line, and that it was there verbally agreed that Sutton’s easterly line should be such new line; that afterwards Sutton occasionally cut timber upon his side up to this new line until his death, about 1873. The deed in 1873, to Sutton, did not follow the new line, but followed
In the present case no such possession was taken as would furnish a basis for adverse possession. Code Civil Proc. § 370 et seq. It was not inclosed or improved or cultivated, and was not founded on a written instrument, as the contract did not cover it. Pope v. Hanmer, 74 N. Y. 240. When the deed came to be given and accepted, in 1873, the description in the contract was followed, thus apparently disregarding and abandoning any paroi agreement that may have been made to the contrary. We think the court did not err in declining to submit the question of practical location to the jury. Assuming it was so located, it did not give title to Sutton or the defendant. There is no question of estoppel in the case. The defendant offered to show by a witness that in the year 1847 he heard a conversation between Micah White and Sutton, whereby it was agreed that the boundary line between the lot occupied by Sutton and the lot known as the “Gregory lot” should be on the height of ground as it was run up to the north line of lot Ho. 4. This, being objected to, was excluded. If the views above stated in regard to similar and stronger evidence on the subject of practical location are correct, then it follows that this ruling was correct. It is further suggested that the plaintiff had not such a possession of the real estate as would authorize him to maintain replevin for the logs. Having the title, lie had constructive possession, and that was sufficient, (Johnson v. Elwood, 53 N. Y. 433,) in view of the fact that the acts of defendant were not of such a character as to furnish a basis for adverse possession. There is no other question that calls for consideration. It follows that the judgment should be affirmed. Judgment affirmed, with costs.