Casey v. Dunn

57 Jones & S. 381, 29 N.Y. St. Rep. 355

• Court: The Superior Court of New York City
• Decided: January 6, 1890
• Status: Published

Opinion

By the Couet.—Sedgwick, Oh. J.

The action is in ejectment. The question in the case concerns the construction of the description in several deeds under which plaintiff claims. That description is “ Beginning at a point on the northwesterly side of Grove street, distant 142 feet 8 inches northeasterly from the northwesterly corner of said Woodruff avenue and Grove street, running thence northeasterly along Grove street 25 feet, and thence northwesterly and parallel with Woodruff avenue 108 feet 9 inches to lot No. 80 on said map ; thence southwesterly along lot No. 80, 25 feet and thence southeasterly and parallel with Woodruff avenue 108 feet 9 inches to the westerly side of Grove street, the point or place of beginning.”

If this description were applied to the land itself, it would appear that the lines said to be parallel to Woodruff avenue, if protracted no more than 108 feet 9 inches, would not reach lot No. 80, by 5 inches, if protracted those' five inches further they would reach lot No. 80. For this reason the plaintiff claims that those lines should in fact be run, not parallel to Woodruff avenue, but in such a a direction that at the end of 108 feet, 9 inches they would reach lot No. 80. If this position were right, then the plaintiff showed as against the defendant, title to the locus in quo.

The question is, did the grantors intend that the lines should not be parallel, or did they make a mistake as to the length of those lines that can be corrected by the other terms of the deed. There is no evidence that the lines were not meant to be parallel to Woodruff avenue. There is certainty in the expression and the lines can be applied to the land as it was owned at the time of the various deeds. It is equally certain that they meant that the lines should be extended to lot Number 80, and that the northern boundary should run along that lot. - It is the necessary inference from these certainties that there was a mistake in describing the length of the parallel lines 108 feet, 9 inches, and that it was intended that those lines should extend 109 feet 2 inches. The learned judge below was correct in his construction of the conveyances.

The plaintiff was not in such an adverse possession of the locus in quo, that certain deeds offered to show defendant’s title were void under the statute. To avoid a deed for such a reason it must appear that the adverse possession was under claim of a specific title, and that the specific title is hostile to the title made by the conveyances. In the present case, there was no other specific title claimed than under the deeds that have been construed. By their proper construction they were not in conflict with the conveyances claimed to be void.

The plaintiff did not show an adverse possession that, maintained for 20 years, makes title or presumption of title. The fence was not built until 1869. Nor was there any practical location, as it is called, of a boundary which would affect plaintiff’s title. In the first place, there was not, in fact, any doubt as to the true lines, although the parties may have erred as to the correct position of the lines. In the second place, from the testimony given, the parties actually intended that the fence should be built according to the true and valid positions of the lines.

It was argued by the learned, counsel for appellants, that from the lines contained in conveyances of neighboring property, some of which were in evidence, and some excluded, it was manifest that the lines in question were meant to be not parallel to Woodruff avenue, but at right angles with Grove street, for the reason that in that case the lines of the deeds, under which plaintiff claims, would agree in direction with the lines of the conveyances of the neighboring land. The argument is inefficacious, because the grantors of plaintiff had the legal power to convey their property as they saw fit to describe it, although that description might not be made under a system which others used for their property.

The judgment and order appealed from should be affirmed with costs.

Freedman, J., concurred.