Jackson ex dem. Trustees of Kingston v. Louw , 12 Johns. 252 ( 1815 )

Yates, J.,

delivered the opinion of the court. It is admitted that the lands in question are included in the patent of Kingston; and the deed from the trustees of Kingston to the lessor of the plaintiff, evidently comprehended the premises in question. Unless, therefore, the premises passed to the defendant by the deed from the same trustees of the 30th of June, 1804, the plaintiff must recover,, at ail events,, to the extent of what is not embraced by ¡that deed; provided the trustees, on the 12th ot April, 1813, had a right to cohvey to the lessor'of the plaintiff, or still retained title to the premises sufficient to enable them to recover on their own demise.

Admitting that by the operation of the act of. 1811, (34 sess. ch. 161.) the trustees.are entitled’ to convey, and? that their deed, to Van Aken is,void, yet the legal title remains in them, until a transfer is made by them-to ¡the supervisors or overseers of the. poor pursuant to the act. The act is somewhat obscurely worded, but when'all' its parts are taken together, it must be construed as only directing the trustees to convey. The second section declares, that, as soon as may be, after the-first Tuesday-in May then next,, all the corporate estate and interest remaining undivided of the freeholders and'commonalty of.Kingston. shall be, and thereby is declared to be, vested in the supervisors of the poor; If.the title was intended to be vested in the supervisors of the ¡poor, by operation of the statute solely, it would hot have declared that as soon as may be after the first of May, Sec. The expression necessarily implies that something was to be done after the first of May, to pass the title; hence the, necessity and propriety of the provision in the third section : “ That as soon as may be. after the first of May, the ^ supervisors should notify the trustees and overseers of the poor to conveneand requiring the trustees to, make a full surrender,' transfer, assignment,-and delivery to the supervisors and overseers of the .poor, of all the estate vested in them,.in trust for the freeholders and inhabitants of Kingston. If the estate was vested in*thei overseers, by operation of the second, section, this provision was unnecessary, and, indeed, absurd, for if the estate had already passed by the act, they could not transfer any thing to the over* seers of the poor and: the supervisors. , .

There is an. incongruity between thege two sections. The second declares the estate vested in the overseers of the poor; and the third requires the trusieess to assign, transfer, and surrender the same to the supervisors and overseers of the poor.. It must undoubtedly have been' the intention to vest the intérest in the supervisors and overseers,, because the supervisors are. made a part of the board which is tó meet, to take the manage* nient and,direction of the property, paying debts; and making division of the lands; and to. whom the trustees are .to account.,. According to this construction, then, the title remains in the trustees until they transfer the same to the supervisors and overseers ; and there is no evidence that this has been done. The trustees, therefore, still retain aright to recover on their demise, if they have not parted with that right by the deed of 1804.

The defendant, by the deed of the 30th of June, 1804, is not entitled to more than one half of the Plattpkill, or creek. After stating the course leading to the creek, the words used are, thence up the same to the southwest corner of cl lot conveyed to Abraham Louw, jun’r.

There can be no doubt but that this lot must follow the creek upon one of its banks, or through the middle. This description or boundary never can be satisfied by running a direct or straight line. The terms “ up the same,” necessarily imply that it is to follow the creek, according to its windings and turnings, and that must be in the middle or centre of it. The rule is well settled, that when a creek, not navigable, and which is beyond the ebb and flow of the tide, forms a boundary, the line must be so ran.

The small lot belonging to, or possessed by, the father of the defendant, arid excepted in the deed under which he claims, ■was sufficiently located by the testimony of John A. Louw and William Blackwell, to warrant the verdict of the jury. They both agree that the situation of the land, thus excepted, was south, and adjoining the sixteen-acre lot; that the father of the defendant and of one of the witnesses possessed it at the time the above deed was executed by the trustees to the defendant, and, consequently, claimed it in behalf of the trustees, and continued to do so until his decease. This ought also to be included in the recovery.

Judgment for the plaintiff-