Reiners v. Young , 45 N.Y. Sup. Ct. 335 ( 1885 )

Pratt, J.:

The plaintiffs and defendant are the owners of adjoining premises-on the east side of Macon street, in the city of Brooklyn, the easterly premises being owned by defendant and the westerly premises-being owned by the plaintiffs. Both premises were at one time-owned by one Curtis L. North, who erected on the premises, now-owned by defendant, a three-story brick dwelling house. Defendant acquired the title to his premises, with the building thereon as erected by North, in May, 1883. Plaintiffs acquired the title to their premises, unimproved, in the summer of 1884. After acquiring the title thereto, plaintiffs commenced the erection of dwellings thereon, and for that purpose had their premises surveyed, and then for the first time ascertained that the westerly wall of defendant’s building and the westerly fence at the rear thereof were on plaintiff’s premises, as shown in the survey.

• The defendant concedes that the title to the premises in dispute is in the plaintiffs, and therefore, disclaims any interest therein except he claims that he has a right to have his building remain where it is and to have support for his wall upon the land in question.

Under these facts we think the defendant was entitled to judg. ment without reference to the question whether defendant might not successfully maintain an 'absolute title to the whole of the land described in the complaint if he had answered setting up title, we think it is clear that he had a right to claim that the wall upon which his house rested should remain where it had been placed by North.

"When the latter built upon the lot now owned by the defendant he made a practical location of the line between the two lots, and having first sold the house and lot whereon It stood, he and all claiming under him, are bound by such location. It .is true North sold by metes and bounds, but he owned upon both sides and he sold a house and lot situated as described, and as the house then stood, not a house and another lot, but the lot upon which the house then stood. If there was any fault or negligence it was upon the part of North, and the defendant was under no obligation to have the premises surveyed to ascertained if North had properly located the house, as North owned the adjoining land and assumed to sell the premises as practically located at the time. It cannot be possible that North could have maintained an action the .day after his sale to defendant’s executor, to make him move the house under the facts here discussed, and if North could not have maintained such an one, surely the plaintiff cannot, for North could not convey any greater right then he held at the time.

The defendant’s claim below was only that he had an easement in the overlapping wall, upon the ground that it was so built by North, he being then the owner of the entire premises and having sold defendant’s lot with the building erected thereon and retained the ownership of the land on the west now owned by plaintiff.

This claim was well founded upon the conceded facts, under the familiar rule that when an owner of an entire estate sells a portion, the purchaser takes the tenement or portion sold with all the benefits and burdens which appear at the time of the sale to belong to it, as between it and the property which the vendor retains. (2 Washburn on Real Property [4th ed.], 316; Simmons v. Cloonan, 83 N. Y., 557; Story v. Odin, 12 Mass., 157.)

The words in the rule “ which appear at the time ” have been construed to mean “ open and visible; ” in other words, the marks of tlie burden must be open and visible to be binding under the rule; that this brick wall and house standing thereon were open and visible at the time of sale cannot be questioned.

Upon the.question of good faith it is evident the defendant supposed he was buying the house and lot upon which it stood, and it is quite clear that plaintiff regarded the wall in question as the eastern boundary of his lots as it is only after a careful survey for the purpose of building that he discovers this less than trifling encroachment.

Other questions are raised by the appellant, but we do not deem it' necessary to notice them, as there must be a new trial for the error above stated.

The judgment should be reversed and new trial granted, costs to abide event.

Present — Barnard, P. J., Dvkman and Pratt, JJ.

Judgment reversed and new trial granted, costs to abide event.