Jackson ex dem. Livingston v. Barringer , 15 Johns. 471 ( 1818 )

Thompson, Ch. J.

delivered the opinion of the Court.

It is admitted that the lessor of the plaintiff is entitled to recover the premises in question, unless the defendant has a right to hold possession under the lease from Robert Livingston to him. The date of this lease is not stated in the case, but it was mentioned on the argument, to have been given in the year 1772. This would seem to be inferrable, also, from the receipts for rent. The description of the land as mentioned in the lease is, “ The farm on which Jacob J. Decker now lives on, lying east of the farm of Jacob Miller, west of the farm of Andries Bartle.and Jerry Decker, south of the farm of Teunis Becker, to contain eighty acres in one piece.” The defendant has in his possession about one hundred and forty-nine acres, and the premises claimed are the surplus beyond the eighty acres. It is a well-settled rule, that when a piece of land is conveyed by metes and bounds, or any other certain description, this will control the quantity, although not correctly stated in the deed. The inference in such case is, that the intention was to convey the whole tract described; and the quantity of acres mentioned must yield to the more certain description. This is a principle very broadly laid down, and sanctioned by this court, in Mann and Toles v. Pearson. (2 Johns. Rep. 40.) It is there stated and adopted as a settled rule, that if a man lease to another the meadows in D. and S. containing ten acres, and, in truth, they contain twenty acres, all shall pass.

The principal question growing out of the case before us is, whether it comes within this rule. It is very clear, that if the plaintiff can recover any part of the land in the defendant’s possession, it must be on the southern part; for, on all the other sides, the bounds are certain and fixed, being on the farms of other persons mentioned in the description. But there is a general description or designation of the land intended to be leased, which is as certain, and more so, than the general designation of a lot by its number. It is the farm whereon Jacobus J. Decker now lives. It is reasonably and fairly to be presumed, that this possession was known to both parties, and that it was the farm, as an entirety, thus possessed by Decker, that was intended to be embraced in the lease ; and that the defendant has no more land in possession than Decker had, is very satisfactorily established by the testimony. Several aged witnesses were examined, who had known the farm upwards of forty years, and testified, that the possession was the same now as it was when they first knew it. J. Decker, the brother of the Decker mentioned as the former possessor, testified, that he had known the farm more than forty years ; that he had lately gone round the fences, and found them where they had been for forty years; and that his brother’s clearing was even farther south than the defendant’s.

When a conveyance is thus made of an entire farm, as possessed by another person, and in reference to such possession, it would be doing great violence to the. presumed intention of the parties, to suppose the whole was not intended to be conveyed. The rent has been regularly paid for the whole of the farm, as it now is, ever since the giving of the lease ; and if any uncertainty exists with respect to the land intended to be included in the lease, after such a lapse of tithe, the acts and acquiescence of the parties ought to have a controlling influence in the location of the premises described in the lease. Under these consideratians, we think that the defendant, at this late day, ought not to be disturbed in his possession; and that he is, of course, entitled to judgment.

Judgment for the defendant.