Heller v. Cohen

—The objections to the plaintiffs’ title to the ■front portion of the tract sought to be conveyed are based upon.the use o'f the word “ northwest,” instead of “ southwest,” by the deeds, in specifying the corner at which the description commenced, and upon the fact that the contract and surveys fix the easterly boundary of the property as 75 feet 11 ¡ inches westerly from Chrystie street, while the deeds describe it as ■75 feet from that point. It is well to state these objections ’separately, and to some extent they will need separate consideration, although each must be weighed in the light of the same facts.

The literal reading of this description would throw a great portion of the property into the bed of Grand street. It is quite plain, however, that this was not intended, and that the 'use of the "word “northwest,” instead of “ southwest,” was a clerical error. That the latter word was intended is evidenced .by the context; that is, by the rest of the description. Grand *1461street runs east and west. The Bowery and Chrystie street Tim north and south. The premises are described as being on Grand street, and as having buildings thereon; also, as bounded on the west by lands of Thomas White. They then run north 100 feet, to Grand street, and then down Grand street, to the place of beginning. Three sides of the lot are definitely located. To make the fourth, “ southwest ” will be construed as having been intended for “ northwest.” Brookman v. Kurzman, 94 N. Y. 272. In this case the word “southeasterly ” ; was held to mean “ southwesterly ” and the rule was laid down that, construing the description clause in a conveyance, such an interpretation will be adopted as will give effect to the intention of the parties, if it can be ascertained from the instrument. Here, as in that case, the intrinsic evidence furnished by the deed makes it indisputable that the intent was to use the word necessary to perfect the description. Here, too, as there, the use of the wrong word was not such a defect as justified a purchaser in refusing to accept title.

But even if the inaccurate use of the word “ northwest ” in Lawrence’s deed were sufficient, standing alone, to invalidate the title, there are other facts which make it plain that the plaintiffs’ testator got a clear record title from Thomas White to a plot of land 25 feet in front and rear, and 100 feet in depth, fronting upon Grand street, and in no way encroaching upon the bed of that street. Ilis grantor, Lawrence, had undoubted title to such a plot. White went into possession under the deed which he received from Lawrence; and, when White died, he devised the plot to his granddaughter by a correct description. When she deeded it to Schott, the draftsman reverted to the incorrect' description in the Lawrence deed, but referred to White’s devise, ancl declared the property to be that which she got from this latter source. She was thus estopped to deny that the property was the same as that devised to her, and, to all intents and purposes, she conveyed it by the description contained in the devise. Bernstein v. Nealis, 144 N. Y. 347; 63 S. R. 638. The deed from Schott to. Speaight was similar, with the result that the latter got a clear record title from Thomas White.

Coming to the partition suit, we find that, although the complaint and decree continue the erroneous description contained in all the deeds, the referee’s deed corrects it by substituting “ southwest ” for “ northwest.” This, it is said, invalidates the referee’s deed. In our judgment, no such result follows. The referee, in law and in fact, did sell the identical jmemises referred to in his deed. The decree directed the sale of these premises, and of none other. They were the same premises which were deeded to Speaight by his grantor, Schott. That deed was part of the record title. The partition suit had relation to those premises, and none other. Thus, the premises sought to be partitioned or sold were, to quote the *1462language of the deed from Schott to Speaight, “the same premises which were devised by the said Thomas White * * * to his granddaughter Ann,” and were . conveyed by Ann to Schott. This deed from Schott to Speaight must be considered in construing the description in the partition proceedings and decree. It was the property obtained by that deed which was the subject-matter of the partition suit. The purchaser at the partition sale was bound by that deed, and all that it contained. Bernstein v. Nealis, supra. The referee’s description was, in effect, the same as though such description had been emphasized by the reference in Speaight’s deed to the premises devised to Ann White, and by Ann White deeded to' Schott, and by Schott to Speaight.

If the referee’s deed were treated as invalid, what would be the effect ? The record title would still be in the Speaight heirs. Any such claim on their part, however, would be manifestly untenable. ■ They sold the property, received the proceeds, and are as much estopped to dispute the referee’s deed as though they had themselves executed it. In making the transfer, the referee acted merely as the agent of the court. If' he defectively executed the power delegated to him, the purchaser might have applied for a re-execution of the deed. By'failing to do so, he certainly forfeited none of his rights, lie was entitled to a conveyance of the property described in the complaint, since he bought and paid for it. His grantors (so1 we may term the heirs) are estopped to deny his claim. S'»,, also, would any one be claiming under them, since the matter is of record. The fact that the complaint and decree, in describing the property, omit the reference to the devise in White’s will, does not curtail the plaintiff’s rights. The case of Bernstein v. Nealis, supra, is in point. There a mortgage contained an erroneous description, together with a reference correcting it; and the complaint, decree, and deed, on foreclosure, omitted the reference. It was held that the decree did not blot out the record of the mortgage, and hence that parties claiming under the mortgagor took with notice that the deed carried title to the premises described in the mortgage. Similarly, here, purchasers from the Speaight heirs would have notice of the prior instruments in the chain of title, and, in particular, of the deed from Schott; thus learning the exact nature of the .property which those heirs owned, and had disposed of by the partition suit. In fact, the referee’s deed stated expressly, as already pointed out in the preliminary statement of facts, that the property was “ the same premises of Avhich Charles Speaight died seised,” and which Avere conveyed to him by Schott in 1821. No exception can be taken to' this addition in the referee’s deed, for any searcher of the title must know that the proceeding Avas taken to dispose of laud of which the intestate was actually seised. Thus, he Avould have notice of the immediate instrument creating the title.

*1463It results from the foregoing that the plaintiffs’ testator got .a clear record title from Thomas White to premises of the proper dimensions, and lying entirely to the south of Grand Street. There was, under this clear record title, continuous adverse possession by the predecessors in interest of the plaintiffs’testator, and such. testator himself, under claim of title through conveyances containing, as we have seen, a sufficient description, for a period of about 85 years. In addition to the evidence of the record, we have undisputed testimony that the plaintiffs’ testator was in possession of the premises ever since the purchase, and in 1870 erected the four-story brick building which is now upon the land, and completely covers it. It also appears from the record of the partition suit that Speaight had been in possession of the premises ever since 1842. The plaintiffs have thus shown a marketable title, which the defendant may not refuse. Shriver v. Shriver, 86 N. Y. 575; O’Connor v. Huggins, 113 N. Y. 511; 23 S. R. 275.

So far only one result of the facts has been considered, viz., that the plaintiffs have acquired title to a plot of land, of the proper dimensions, entirely to the south of Grand street; that their rights are the same as if “ southwest ” had been used in the deeds instead of “ northwest.” But it is said that the contract calls for property beginning 75 feet 111 inches westerly from Chrystie street, while, under his deeds, the plaintiff’s testator got title to property only 75 feet west. The easterly boundary of the property is, in fact, at the spot specified in the ■contract. This, it is said, .will make it encroach upon the premises to the west. If it did, adverse possession would again be a sufficient answer. There is, in fact, however, no encroachment or possibility of one. As we have seen, the plaintiffs have the record title to a lot of a 25-foot frontage, lying ■entirely to the east of other property belonging (when the devise was made) to the common owner, Thomas White. The '¡surveys show that the plaintiffs’ testator did not build upon •an inch of ground which did not come to him under his deeds. The discrepancy is caused by the fact that the earlier conveyances were made in reliance upon what is known as the Delaney Map.” This map stated the distance from the Bowery to Chrystie street to be two hundred feet, whereas it is in reality over two feet longer. Eleven and one-half inches -of this surplus have fallen to property to the east of that in suit, and this is the occasion of the discrepancy. The case is similar to Meyer v. Boyd, 51 Hun, 291; 20 S. R. 918. There the owners, on learning of the surplus, prepared maps distributing it pro rata; and the acquiescence in these maps was .held an answer to the plaintiff’s complaint that the record title was not perfect, although the defendant had not adversely held his land for 20 years. The present case is even stronger. There is the same certainty that no adjoining owner has a .legal claim to the strip, and there is also adverse possession ■confirming the title to it.

*1464The objection to the title to the parcel in the rear is quite-without merit, and does not need special consideration. It is. completely answered by the sixth point of the learned counsel for the appellants.

The judgment should be reversed, and as the facts are all before the court, and a new trial could not change them, the-plaintiffs should, have judgment as prayed for in their complaint, with costs of the trial and appeal.

All concur.