The Chancellor.
The bill of exceptions was taken to the opinion of the judge on four points.
1. Because both the lessors of the plaintiff are dead ; and on this the defendants grounded their motion for .a nonsuit, which the judge overruled.
3. Because, upon a just construction and location of the patent to Jan Hendrixe He Bruyn, the premises in question could not be included; but the judge determined that the premises ip question were covered by it.
3. Because, by a correct construction and location of the patent to John Baker and Jacob Janse plodder, the premises in question were covered by that grant, which, being older than the one under which the plaintiff claimed, must be first satisfied. But the judge determined that the patent of Baker and Plodder., supported only by the evidence offered, was void, and incapable qi location.
[507]*5074. Because the possessions of the defendants, and those under whom they claim, have existed for such a period, as to toll the right of entry of the lessors of the plaintiff, if any such right in the land ever existed. But the judge charged the j ury, that if they found an adverse possession of the premises in question held by the defendants, and those under whom they claim in regular connection, continued for 27 years and S months prior to the commencement of the suit, that then they should find for the defendants ; otherwise, for the plaintiff.-
These points have been precisely stated in the court below, by the defendants in that court and the plaintiffs here, as reasons against maintaining the action; and on those points, in exclusion of all others, the opinion of this court is required.-
1. As to the first point. That the death of a' lessor does not abate a suit in ejectment, has long been the settled doctrine. The action is considered as a legal fiction, devised to subserve the purposes of justice, and to be modelled, as those purposes require ; and so' far has this doctrine been carried, in advancement of justice, that even where the lessor was a tenant for life, his death was not permitted to abate the suit, which, it was-held, might still be prosecuted, for the damages and costs. (2 Str. 1056. Jenk. 293. pl. 38. 1 Bac. Abr. 13. Vin. Eject. (T.) pl. 4.)
2. As to the second point. In the case of Van Gorden v. Jackson, (5 Johns. Rep. 467.) I said, that a bill of exceptions was given by statute, not to draw the whole matter into examination, but only on the points to which It was taken ; and that the party excepting, must lay his finger on those points, which might arise either in admitting or denying evidence or matter of law, arising from a fact not denied, in which either party was overruled by the court. (2 Bac. Abr. 529. Bill of Exceptions, and the cases there cited. 2 Caines, 169.)
[508]*508The case on which this court is now required to decide, affords a striking illustration of the utility of this. doctrine; for if the court is to pursue the counsel, in. the line of their discussion, they must, after deciding on the law, examine the evidence, weigh the relative credibility of the witnesses, and determine on the existence of facts, to the total subversion of one of the most salutary maxims of our law, that to questions of fact the jury are to respond ; to questions of law the judges.
The second point relates to the construction' of the patent to Jan Hendrixe De Bruyn. The construction of a grant is matter of law. Its legal effect is only deducible from its terms, according to the intent-^pt the time of making it; (3 Bac. Abr. 393;) and matter subsequent,, which, by showing the sense of parties, may authorize a jury to give a more liberal or restricted construction to it,, as deduced from such matter, is exclusively in the province of the jury. It applies with equal force, whether the terms in which the grant is conceived are certain or ambiguous ; for both require extrinsic aid to give them effect, which aid it is not in the power of the court- to afford. Thus, if the place from which the description-commences, is a lake, and the place to which it is to proceed, a brook, the court would restrain the parties from taking a rock for the one, or a. mountain for the-other ; but which Was the particular, lake or brook intended, must necessarily be left to the jury.
The patent to De Bruyn, dated in December, 1686,. requires it to stretch from David’s Hook, southerly,, along the river to the Saw-kill of Frans Peterse Cl aver,. stretching to the east, and into the woods to the two first: lakes.
Respecting the two stations on Hudson’s river, David’s Hook, and the Saw-kill, there is no contention;- and no construction has been suggested, as a substitute, for-carrying the eastern extent of De Bruyn’s patent to the Fish Lake. The first reach, or stretch from one sta— [509]*509tion to the other, on the Hudson, has no latitude, and no direction, but along the river. This, therefore, could only have been a line along its shore, bending with, and corresponding to its inflections, from one point to the other.
The next stretch is to the east, and a single line in that direction covers no land; it could not possibly touch the two lakes, as they are described in the patent, or the two expansions of the Fish Lake; and it gives no closing lines ; for if a single line is to be run east, it is absolutely necessary to supply others, if the lake is not coextensive with the distance- between the two stations on the Hudson, from the termination of the east line to and along the lake, and from thence a closing line to David’s Hook. There are no terms in the grant which can possibly supply these lines, if lines only are assumed, as the means of description; and I know of no legal principle, which will afford a ground for so subtending those lines.
In giving my opinion, in the case of Van Gorden v. Jackson, (5 Johns. Rep. 462.) I said, that the word stretching, in its common use in grants, during the early periods of the English colonial government here, was applied either to the extent of a single line, or to a rolling location, in which the breadth being described bylines or surfaces, was carried, with such breadth, to the object described at its terminus. This I still think correct, when applied either to a line, or to a rolling patent, not limited in its lateral extension, after departing from its base.
The patent of De Bmyn has no extent eastward from the river, unless the rolling construction is applied. It -is to stretch east, and into the woods, to the first two lakes. No. other lakes having been shown, to which the description can apply, the Fish Lake, which, from its conformation, was probably- considered as composing two distinct lakes, and respecting which there has not been [510]*510much contention, must be taken to be the lakes intended *n t*le Patent* The space between the two points on the river, are admitted to be at a greater distance from each other than the northern and southern extremities of the iake.
It does not require a square or a parallelogram to satisfy the terms of this patent. If, as far as respected its lateral extent, it was to have been located in unlimited spfice, and the lake had been of as great or greater extent than that between the two points on the Hudson, its breadth, to satisfy the terms of the patent,, ought to be carried without variation throughout; but its- lateral eastern extension must unavoidably be contracted-by circumstances. Thus, if the terms had been, stretching to the east, to- a tree accurately described, so as not to admit a doubt of the tree intended standing on the west bank of the Fish Lake; these terms, construed-according to the settled law,- uniformly applied to all the grants of the crown, that they shall receive a construction most beneficial to its interests, would have imposed a construction, that two lines, drawn from the given stations on the Hudson to such tree, so as to make it the vertex of the triangle, included the land intended to be granted; and if, instead of'a tree? a lake (as in this case) was given, as a boundary, of less extent than the space between the two stations on the Hudson, the construction, on the same, principle, must be, that all the land lying between the Hudson and the lake, and straight lines drawn from the extremities of the latter to the stations on the Hudson, was included by that description. If this rule was- not to be applied, the extension of the whole breadth to the point, at which it first touched the lake, would equally satisfy the terms of the patent, with the construction which I deem the correct one.
My construction of the patent, deduced from- these considerations, is,, that the line from David's Hook to-[511]*511the Saw-kill, is to be drawn between those points, along the east shore of the Hudson, and composes the ■western boundary; a line along the west shore of the Fish Lake, • • i in its whole extent, the eastern boundary ; and straight lines from the extremities of the lake, to the stations on the Hudson, David's Hook, and the Saw-kill, the northern and southern boundaries. This construction satisfies all the terms of the patent.
The direction of the extent from the river is positively east. As applied to the space on the Hudson and on the lakes, the diagrams of the parties united in showing that the -direction was accurately described. The outlines, however, on the given construction, do not comport with an east course. If the description had applied to lines only, the well settled rule of construction, that where a course and natural boundary are given, and they do not correspond, the course must yield to the boundary, as more certain, would reconcile them; but if it is only applied to a line run to the lakes, it being required to be run east to the lakes, though it might be a question at what particular part of the Fish Lake the east line was to terminate, no liberality of construction could substitute a line, widely departing from it, and which would require almost a rightangled line to close on it, when a direct line, in that sense, was described, commencing at the Hudson, and terminating at the lake.
Whether the location I have described will exclude the premises in question, is not a subject for the determination of this court; for here, as in the court below, after the law has been pronounced, the jury only can apply it to the facts, which are to be collected by them from the evidence adduced; and they only can decide whether the premises in question are within or without it. In this case, if the judge has not given the true construction, he has mistaken the law on the subject, and if, instead of leaving it to the jury to decide whether De Bruyn's patent included the premises, he has decided, as matter of [512]*512law, that the premises were covered by it, he assumed a riSht determining on both law and fact; and hi that he has erred. If, indeed, the judge, in giving his opinion on the result of the evidence, had so charged the jury, the better resort would have been to the supreme court, for a new trial, on the ground of misdirection; but as it comes up, as a matter of law, arising from a.fact not denied, the existence of the patent, I hold it, if it is well taken, a valid reason to be assigned in error.
3. The next point in the bill of exceptions, is, that the judge determined that the patent of Baker and Floclder, supported only by the evidence offered, wj<® void, and incapable of location.
In the exposition of ancient grants, our courts have uniformly been liberal, to give effect to them, according to their intent. The patent to Baker and Fladder is an ancient grant. It is dated in 1677, only three years after the surrender of the colony to the English, and intermediate that event, and its final cession, in 1674, a period claiming peculiar indulgence as to the construction of the grants then issued; the descriptions of that day being more inaccurate, from the circumstance of the conquering and conquered people speaking different languages ; from the imperfect knowledge of the interior of the country, beyond the shores of the navigable waters ; and from the grants not being preceded by actual surveys. All these considerations are connected with the general history of the.country, and some of them are deducible from the grants now under examination, and, of course, proper to be mingled, in giving it a construction, if it should be requisite to resort to those aids : for whatever may be the circumstances under which it was made, it must receive its construction from its terms, and according to its intent at the time, it was issued; but to test the opinion in review, it is only necessary to determine whether this is a void grant.
From the terms of Baker and Plodder’s patent, it is to [513]*513•he collected, as a legal construction, that a certain parcel of hush or wood land, together with a creek or kill, with the fall of water, running north and south, lying and being on the north side of the Emiques'1 land, and on the west side of the great kill, was granted.
Bush or wood land, a creek and a fall, are descriptions of subjects susceptible of grant; and the further description, lying on the north side of the Emiques1 land, and the west side of the great kill, without evidence extrinsic the patent, might, by possibility, be as perfect as the ingenuity of man could have devised, for aught that appears from the patent; for the great creek and the Emique’s land might form a square, a circle, or a polygon, completely enclosed, and defined by those objects.
In every general description of this kind, its application is to be determined from the situation, form and extent of the objects to which it relates ; and both the Emiques’ land and the creek, though the general bearing of the whole extent might satisfy the terms of description, as lying on the north side of the one, or west side of the other, might be of a shape to enclose the land granted, so as to leave no doubt as to the object of the grant.
Uncertainty as to the application, abstracted from the question of law, must unavoidably exist, as to all grants; for it will be readily comprehended, that it is not possible to make a grant of any parcel of land, by metes and bounds, defined with perfect accuracy, which a stranger, totally unacquainted with the objects of the grant, but from its import, and unacquainted with the country contiguous to it, can locate, without acquiring a certain portion of knowledge for that purpose, extrinsic the grant. He must ascertain the distance and names of the lakes, rivers, or creeks, if either compose part of the description; and in locating the simplest figures, a square or a circle, the place of beginning of the one and the centre of the other, must be necessarily discovered by inquiry, or knowledge acquired extrinsic the grant; and a [514]*514person perfectly acquainted with every circumstance essential to a correct location, could not possess that . ’ r knowledge intuitively ; but would insensibly avail himself of it, as if it had been expressed in the grant.
The judge, in this case, did not found his opinion on the patent only, but also on the evidence offered in connection with it; the qualification he made, that nothing more could be protected by the patent than what had been so long held under it, that no other patent covering it could take it away, he obviously grounded on the right of possession only, for it could have no effect on the possessory right, but as evidence that the person possessing claimed the land as his own. From a void patent, no right could possibly be deduced:
This could not be a void grant, on another ground; for some of the subjects of grant were obviously described with suificient certainty. A creek is a word as certain as a house: a fall, if a distinct object of grant, is equally so. That a fall is mentioned, when, in fact, there were several falls on the creek granted, which has been urged, though it does not appear, would not detract from its certainty, if the creek passed ; for a grant of a tract of land, comprised in certain and indubitable boundaries, together with a house, would pass all the other houses erected on it.
The only authority which has been cited, as applicable to this subject, is one in which a tract of land was granted, as lying in one county, when, in fact, it extended into another. It was held, that it could not operate to pass the land beyond the bounds of the county to which it was-limited; and this cannot, on any construction, be considered as uncertain, for it was certainly beyond the limits of the grant. (Moore, 176. 3 Bac. Abr. 389.)
In this case, the charge was general, that the grant was void. If it is void, this court, by concurring in that opinion, will decide the only question presented on [515]*515this point; for it cannot be necessary to examine the construction of a totally inoperative grant. If it is not void, the application of the construction cannot be got at here ; for by pronouncing the opinion of the court below erroneous, all decision, beyond that point, must be extrajudicial.
The court below was not correct in deciding beyond ' the mere question of law; for, as to the facts, the jury were to decide exclusively; and this rule is so rigid, that in an action of trover, though a demand and refusal is so far conclusive evidence of conversion, that the court will set aside a verdict finding contrary to it, yet if upon a special verdict, both demand and refusal are found, it has been held, that the court cannot infer a conversion from those circumstances.
I am, therefore, satisfied that the opinion expressed on this point, was not correct; and that in this there is also error.
4. The fourth point did not arise in admitting or denying evidence or matter of law, arising from a fact not denied. It was a proper subject to ground an application for a new trial. It is not, therefore, a point on which the opinion of this court, on a bill of exceptions, can be required.
I have before intimated, that the mode of proceeding, by bill of exceptions, is derived from a statute provision, that it was the intent of the statute to enable a party to avail himself of error not apparent from the record; that the review is rigidly confined to the precise exceptions in the bill, and to no other; that it never can be a ground for a general examination of the record, much less of the evidence offered in a cause, which is only introduced explanatory of the bearings of the exceptions ; that the statute did not intend to withdraw from the jury their incontrovertible right of determining upon facts. Hence all the points which have been discussed, not appearing from the bill, were not well addressed [516]*516to this court, and must be considered as out of the case ; and whether the patent „of Baker and Flodder is to re-' ceive the one construction contended for, or the other, cannot, on this bill, be a subject of decision. If its cor» rect legal effect had been communicated to the jury, it would have become their duty to have considered the evidence ; to contrast, to weigh it, to decide on the relative credibility of the evidence offered, and from the whole, to locate the patent. That they were not permitted to do so, appears to me to be manifest error; and for the reasons I have assigned, I am for reversing the judgment, on the second and third exceptions taken in the bill.
Lewis, senator, declared, himself of the same opinion.
Platt, senator, also concurred.
. H. Yates,
jun. senator. The points in this cause, as stated in the bill of exceptions, taken to the opinion of the judge at nisi prim, are four. (Here he stated them.)
The rule of practice, as to the first point, has long been settled, the action of ejectment being a mere fiction to try the title. Where the estate does not cease to exist in the heirs, by the death of the lessor of the plaintiff, the suit does not abate.
The second point involves the construction of the patent to Jane Hendrixe De Bruyn, granted in December. 1686, under which the plaintiff claims.
The description of this patent is as follows : “ That certain piece or tract of land lying on the east side of Hudson’s river beginning from Davidson’s creek, and from said creek stretching southerly along the river to the Saw-kill of Frans Peter Claver, and stretching to the [517]*517¿ast, and in the woods to the first two lakes, or in-waiers-”
Was the question now to be decided on the testimony, as presented in the bill of exceptions, the original location, the survey by Ver Planck in 1720, the regulations of government in 1731, the division made by Bleecker in 1751, and the admissions, as far as the acts,of the patentees of Kinderhook could be called so, in the subdivision of their patent, would be strong reasons for not disturbing lines which had been acquiesced in for so long a period of time; but we are confined within narrower limits. The question before the court now to be decided is, whether the judge was or was not right in his decision and charge to the jury, and which, on this point, was a mere legal construction founded on the patent itself. A construction must, therefore, be given by us to this patent, without that testimony. The line from JDav/dson’s creek to the Saw-kill of Frans Peter Clover, is along the river; it is admitted that the Fish Lake is one of the lakes intended in the grant, and from, the facts, as they appear before us, we have reason to believe that the Fish Lake, from its form, is the same with the two lakes mentioned in the said grant. Those facts being settled, and in some measure admitted by both parties, it follows, of course, that the river is the western, and the lake the eastern boundary. The only question then to be determined, on this second point, is, what construction must be given to the word stretching’, as used in the patent; whether it applies to the lines, to the land, or to both; and if applied to either, or both, whether it necessarily follows, that the northern and southern boundary lines of the patent should be parallel to each other, and should be extended from the river, as its base, a due east course, until it intersected a line north and south through the lake. If a correct construction will not warrant the running of the southern line, parallel to the northern, or a due east course, whether [518]*518that line ought to incline to the north, so as to touch the southern extremity of the lake, or should incline . ' J . still more to the north, so as to touch that part wnich is , . . . , • r nearest the river, being, the westernmost extremity or the lake. Stretching, as used in the patent, is, in my opinion, applicable to the lines as well as the land ; that it does apply to the lines, is evident from the manner in which the same word is before used in the description of this patent: “ From said creek stretching southerly, along the river, to the Saw-kill of Frans Peter Claver;n clearly intending that the line along the river should Stretch southerly: the Saw-kill of Frans Peter Cla.ver not extending along the southern bounds of the whole tract: and that the lines, as well as the land, are intended by the word stretching, as used the second time, appears evident to me, from the consideration that the place of beginning, at the north-western corner of the tract, had been designated, and the line along the Hudson, and the" south-western corner mentioned. The general words, therefore, “ stretching to the east,” are applicable to the land, as lying along the described base, and more particularly to the lines as stretching from the northern and southern extremity of the base “ to the east,” or a due east course, as nearly as possible, so as to cause both lines to touch the lake or lakes. If, therefore, a due east course of the south line will touch the lake at all, ta this course they ought theft strictly to adhere, in ascertaining the true bounds of the patent; but if it will not touch the lake, a straight line, for the southern bounds of the patent, ought to be drawn from the south-western extremity of the base to the lake, deviating from a due east course as little'as possible. It would be improper to draw the line from the Saw-kill to the nearest part of the lake, unless that part extended further south than any other part of it, but the line must be so drawn as to touch the most southern extremity or projection of the lake. It is immaterial, in my view, whether this line [519]*519is the shortest or longest. When a natural boundary and course cannot both be reconciled or satisfied, the course ought to be abandoned no farther than is absolutely necessary to correspond with the natural boundary# If this line be adopted as the southern boundary, it is admitted that it includes the premises.
The judge, therefore, was correct, as far as it affects the present cause, in giving the construction to this grant, that the premises were included in it; but I do not agree with him in the opinion that “ the whole tract of land, between the two river stations, must stretch east, in the manner laid down in the plaintiff’s map.”
The third point involves the construction of a patent granted to John Baker and Jacob Janse Bladder, described'as follows :
“ A certain parcel of bush land, near Fort Albany, together with a creek or kill, with the fall of water, running north and south,.lying and being upon the north side of the Emiques’ land, at Kmderhook, and on the west side of the great kill, containing, by estimation, -- acres of land.”
This patent of Flodder and Baker will not admit of any possible construction, so as to include the premises. I am fully persuaded, from the words of the grant, that it is impossible, at this time, to give any just construction to it, or to discover what was intended by government, except the creek at the fall, and the fall; but what, or how much land, is uncertain. We can only judge from the location of it by the patentee, which was the creek at the fall, and the land immediately adjoining. If any other possessions or locations did exist, the jury must have taken them into consideration, under the charge given by the judge; which charge, in relation to this patent, was, in my opinion, correct.
The fourth point, in relation to adverse possession, was properly submitted by the judge to the jury ; and I see no cause of exception to the manner in which this [520]*520was submitted by him. The testimony was not such as to make out an adverse possession. I am, therefore, of opinion that the judgment of the supreme court ought to be affirmed.
But a majority of the court
For affirming, 6; for reversing, 14.