Nostrand v. Knight

4 N.Y.S. 581, 22 N.Y. St. Rep. 121, 51 Hun 644, 1889 N.Y. Misc. LEXIS 1610

• Court: New York Supreme Court
• Decided: February 11, 1889
• Status: Published

Opinion

Barnard, P. J.

The pleadings raise no question as to the binding force of the agreement upon all the parties. The signatures of the attorney by Philips & Wells were made by admitted authority, and to the charge that' the defendants made the contract there is no denial, but an admission that Chañes T. Knight, the attorney, had power to contract for all the other owners. The property intended is not certainly defined and described in the agreement. This description is a general one, as follows: “All that certain grist-mill and water-power, including a tract of land with tenant-house at Bound pond, and the outlet to said pond, together with all the rights and privileges to the water in said pond that the late C. B. Knight possessed in his life-time, and belonging to said property.” It appears that there is a strip of land adjacent to the pond, and near the lower part of it, and the question is whether this strip, amounting in all to about seven acres, should be included in the deed. The title came to Charles B. Knight by devise from his father in 1862. The words of this devise are specific, and by metes and bounds described the beds around the pond, “including the grist-mill and saw-mill.” After Charles B. Knight acquired title, he mortgaged the property by the same description. In 1882 the present owner took the property for sale in the hands of real-estate agents in Kew York at a fixed price, and a map was at the same time left with them, showing the property to include the land around the pond. This map was not shown to the plaintiff’s assignor, so that he did not expressly contract with reference to it, but its importance remains as indicative that the property was what was known as the “ mill-property and water-power” of the Knight family at Monroe, Orange county. In 1887 the Hew York agents requested a revision of the price, and it was reduced to $10,000, but no indication was made that the property was changed so as to be different from the map. On the contrary, the subject of the contract was silently, at least, treated as the same as left for sale in 1882. The description in the bond and mortgage includes the saw and grist mill, and lands surrounding them. As against this evidence there is only the understanding of several witnesses that the mill property only included the part of the land devised by Charles B. ICnight which was rented and used with the mill. The strip along-side the pond was separately rented. There is an absence of proof tending to bring home to the purchaser that there was any change in the land sold to make it different from the piece devised. The proof that, in dealing with the property, the owner had rented the mill and water-power separate from the land along the pond has little importance, and the belief and understanding of the people of the neighborhood that the mill and water-rights fill the description of the agreement has still less in view of the proof. The plaintiff acquired land and water manifestly as a mill privilege, and they agreed to sell this land and water-right without indicating any abatement. The land is a very beneficial aid to the water-right, both the upland and the lowland under water. There is no reason proven why both should be separated from the mill and water-rights. The judgment should therefore be reversed, and anew trial granted, costs to abide the event. All concur.