Jackson ex dem. Goodrich v. Ogden , 7 Johns. 238 ( 1810 )

Kent, Ch. J. delivered the opinion of the court.

This is a motion on the part of the plaintiff to set aside the verdict, and for a new trial.

When this cause was heretofore before the court, on a like motion on the part of the defendants, a new trial vvas awarded to let in evidence of acts of the lessors of the plaintiff; and the court observed that there -might be gUCh acts as would be sufficient to conclude them. (4 Johns. Rep. 140.)

In considering the present motion, I shall take in one connected view such facts as have been presented to the court upon the former as well as upon the present motion, which remain uncontradicted.

Lots No. 15. and 16. in the patents in question, join each other, according to the map in the secretary’s office ; and the patents for those lots respectively refer to the map, and then describe each lot by courses and distances. But the courses and distances do not correspond with the map, and no doubt there is a vacant piece of ground (being the premises in question) lying between lots No. 15. and 16. provided those lots be located according to the courses and distances actually run, and the monuments actually established in the original survey made before the issuing of the patents. There was a "supernumerary lot actually surveyed by Wattles, who run out the lots in the year 1785; and he run out 17 instead of 16 lots, and then, upon the map which he returned to the government, he omitted the 17th lot; and he took a patent for lot No. 16. and that patent, upon the face of it, and according to the map to which it refers, included the supernumerary lot.

It was, then, the mistake or the fraud of Wattles, which laid the foundation of the present controversy. Wattles conveyed lot No. 16. to John Harper, shortly after the date of his patent, and Harper, on the 10th July, 1790, conveyed lot No. 16. to James Hawley, from whom the lessors of the plaintiff derive title, and on the 12th July, 1793, a tract of land, described by metes and bounds, and containing 250 acres, and being the premises in question, to Ansyl M'Call, from whom the defendants derive title. The manner in which lot No. 16. is described in the deeds to Harper and Hawiey, is not stated in the case. We are not necessarily to conclude, that the lot No. 16. granted to Hawley, was commensurate with the lot No. 16. granted by patent to Wattles; for it does not appear, by the case, that the deed to Hawley referred to the patent, or adopted the description in it, with reference to the map on file in the secretary’s office. It was competent for Harper and Hawtey to limit the boundaries of lot No. 16. and make it less extensive than it would be if located by the map. The acts of the parties show that the lot, as granted by Harper, and as received by Hawley, was intended by them to be less extensive. Whether parcel or not of the thing granted, is matter of evidence. This was so held by the judges of the K. B. in the case of Doe, ex dem. Freeland, v. Burt, (1 Term Rep. 701.) and it will be found to be a strong authority on the point. If we assume the fact to be that the description followed the patent, the question will then be on the effect of the acts of the parties in locating their deeds. It is a mere question of location, and not of paper title. The courses and distances, and marked trees, spoke one language, and the map another* All the parties in interest from the year 1790 to the commencement of this suit, followed the actual survey, and took possession accordingly. They all considered the premises as a distinct lot, not included either in No. 15. or No. 16. They located according to the facts addressed to the senses, without having recourse to the secretary’s office; and when the question of location was thus rendered ambiguous or uncertain, by the contradiction between the map and the survey, (and both were referred to in the patent and early deeds,) a practical location and construction given by the parties, and acquiesced in through a series of transfers, and for a great number of years,' until the lands had become cultivated and had grown into value, -cannot but operate with great, if not with decisive force. It would be extremely inequitable for .the j i. plaintiffs now to be able to say, with the aid of the court, we have, been all along under a mistake, and have equally contributed to deceive the defendants, and him from whom they purchased; we can now go beyond our location, and the land which wé supposed we had purchased, and can recover the defendant’s farm-, which we have constantly declared did no* belong to us. On the motion for a new trial, for the mistake of a jury, the courts will always, in the exercise of a sound discretion, take some notice of the injustice of the claim. A man standing by and suffering another to build on his land, and setting up no right, though conusant of it, does, by this conduct, in equity, lose his land; (East-India Company v. Vincent, 2 Atk. 83.) and in one case,, such conduct has been held, at law, in an action of ejectment, a forfeiture of his right. (Tarrant v. Terry, 1 Bay’s S. C. Rep. 239.) Though I d<s not acquiesce in the last decision; yet these cases show how unfavourably such claims have been viewed by-courts. so have those from whom we derived title, and we

There is no doubt that when yames Hawley purchased lot No. 16. in 1/90, he took possession according to' the original survey, and thus practically defined his bounda- :?1 ries. It was proved, that when M'Call took possession of the premises under his purchase from Harper in 1793, the Hawleys were in possession of lot No. 16., and they said that a certain hemlock tree was their boundary. This hemlock tree was one of the corners of lot No. 16. according to the original survey, and in exclusion of the premises. The premises lay north-west of this boundary, and yames Hawley told a witness where his line extended to, - and that it did not extend to the premises. These were the declarations of the owner of lot No. 16., cotemporary with the purchase and settlement of the premises by M'Call, The next owner of lot No. 16. was freeman, whose title commenced in 1795, and he said that the land which the defendant was on was a vacant lot. Griswold, one of the lessors of the plaintiif, and who was in possession of lot No. 16. as early as 1797, accepted a covenant under seal from the defendants, by which they agreed to sell to him 50 acres, being part of the premises, and Griswold afterwards said that he had this possession from the defendants. M'Call then took possession of the premises, with the knowledge and acquiescence of Hawley, and under a deed from the same-person from whom Hawley derived his title. Every subsequent declaration and act of Hawley and his successors was calculated to strengthen confidence in the distinct titles derived from Harper, and it appears that the defendants were purchasers for a large consideration. It was incumbent upon Hawley, and those under him, to locate their deed truly, and to be conusant of its bounds. Here was uncertainty arising from the variance between the map and the actual survey, and the proprietors locate according to the latter, and hold out that to their neighbours, the possessors and claimants of the premises, as the true location. They go further: they purchase under the defendants’ title. If these acts do not amount to a full recognition of that title, and conclude them from now correcting that location, I think they are enough to justify this court in not actively in-terfering to help them, by disturbing the verdict of the -jury. They ought, at least, to be left to commence their action de novo.

Wattles, the patentee, and every person without exception, who has derived title from him, have acknowledged and acted upon the distinction between lot No. 16., as it appears upon the map, and the premises. Wattles himself created this distinction, and Harper, who took under him, supported this distinction, by his separate deeds to Hawley and to M'Call, and we have sufficiently noticed the declarations and acts of the subsequent purchasers.

The owners of lot No. 15. lying west of the premises are also among the lessors of the plaintiff; but it would seem that lot No. 15. has no colour of pretension to the premises. The owners of that lot located it west of the premises; for it was proved that Johnson and Goodrich were in possession of lot No. 15. when M'Call took possession east of them, and they claimed as far as to the defendants’ west line, and this was supposed to be the east line of lot No. 15. Johnson and Goodrich, the lessors, frequently examined the east end of lot No. 15 and fixed it west of the defendants’ possession.

Upon every view of this case, the court are accordingly of opinion, that the motion on the part of the plaintiff for a new trial ought to be denied.