text:
    George R. Beach, substituted administrator with the will annexed of Naomi C. E. Wright, deceased, v. The Hudson River Land Company et al.
    [Submitted September 24th, 1903.
    Decided October 31st, 1903.
    Filed January 20th, 1904.]
    1. Under an agreement to convey land at a certain price per acre, the acreage to be determined by a survey, excluding the right of way of a railroad, the area of highways included in the described tract should be included, in determining the amount of the consideration.
    2. The existence of a highway on land which one had agreed to convey free and clear of any encumbrance, and by a good and marketable title, would, at best, only entitle the grantee to a reduction from the purchase-money to the amount the existence of the highway reduced the value of the tract.
    On bill to foreclose. On final hearing on bill, answer, cross-bill and replication.

      This is a bill to foreclose a mortgage, dated December 30th, 1897, but actually executed and delivered about the 13th or 14th of'January, 1898, given by John E. Alexander to DeGroot and Garrick, executors named in the will of Naomi C. E. Wright, deceased. Both of these mortgagees having died, Mr. George E. Beach was substituted in their place and filed the bill.
    The equity of redemption in the property covered by the mortgage has passed from Mr. Alexander, the mortgagor, to the defendant herein.
    The question is wholly as to the amount due upon the mortgage, the defendant claiming that there was at a certain time only $882.08 due, and the complainant claiming that there was at that time $2,224.20 due.
    The bond and mortgage were given as part of the consideration money for a tract of land conveyed by the original executors to Mr. Alexander, by deed dated December 30th, 1897, but actually acknowledged and delivered about the 13th. of January, 1898, coincident with the delivery of the deed.
    It appears that the land was sold by the acre, in pursuance, of a previous contract, dated April 30th, 1897, which required the conveyance to be free and clear of encumbrance. The precise quantity of land ■ qonveyed was not determined at the time the conveyance passed, and a clause was inserted in the bond and its recital in the mortgage as follows:
    “And it is hereby' agreed that if upon a particular survey of said farm it shall appear that the same (exclusive of the part owned by the Northern Railroad of New Jersey) contains an area of less than sixty acres, the principal of the said bond shall be reduced at the rate of six hundred dollars per acre for the amount of such deficiency of area. And that if said farm contains an area of more than sixty acres, the principal of the said bond shall be increased at the rate of six hundred dollars per acre for such excess of area.”
    At the same time, to wit, on the 13th of January, 1898, the parties to the original contract of sale — DeGroot and Garrick, executors, on the one part, and Edward A. Eyan, the vendee,, on the. other part — executed a short contract, as follows:

      “The property described in the within [the original] contract has been conveyed to John E. Alexander by deed bearing date December 31st, 1897, and the said Alexander has given back .a purchase-money mortgage tor $10,000 on a portion oí the property.
    “It is understood and agreed however that the giving of said deed and the giving back of said bond and mortgage is not to be considered a complete fulfillment of said contract, that the amount of land to be paid for is to be determined by a particular survey of the property satisfactory to both parties and that then the amount of the bond and mortgage given by said John E. Alexander to the parties of the first part in the above contract, is to be adjusted and the fulfillment of the contract is to be completed according to the terms contained in said contract, and it is understood that the terms and agreements contained in said contract are not to be changed in any way by any language contained in said mortgage or deed anything herein or therein in any 33'ise to the contrary notwithstanding.”
    Tlie material parts of that contract are as follows:

      ‘‘First. The parties of the first part hereby grant unto the party of the second part the option to purchase a certain farm situated in the Borough of Ridgefield, and the Township of Ridgefield, containing about sixly acres of .land, which was owned-by Naomi O'. E'. Wright at the time of her death, bounded on the south by lands formerly owned by Samuel E. DeGroot, and conveyed by him to Sidney E. Morse, on the west by the Over Peck Creer;, on the north by land formerly belonging to Samuel Hammond now deceased, and on the east by lands formerly belonging to John E'dsall, at the price of six hundred ($600.00) dollars per acre, said option to expire on the first day oi; November, eighteen hundred and ninety-seven.”

      “Fourth. Upon making said payments in the manner aforesaid, the parties of the first part shall execute and deliver a deed of conveyance in fee simple to the party of the second part or to such person as he shall direct, free mid clear of miy eneumbranee, which shall convey an ^indefeasible estate in fee simple to the grantee and' his heirs, by a good and marketable title."

    The description of the land contained in the deed and mortgage was the result of an actual cotemporaneous survey of the premises, and was as follows:
    “All that certain messuage, tract or parcel of land and premises, hereinafter particularly described, situate, lying and being in the Borough and Township of Ridgefield, in the county of Bergen and State of New Jerses- at what was formerly known as the English Neighborhood, being the farm of which Naomi O. E. Wright, deceased, died seized. Beginning at the southwesterly corner of the land formerly of Cornelius Bogert, and later of John Edsall, from thence running northwesterly along the land formerly of John Day, now of Sidney E. Morse, and land now of late Samuel E. DeGroot, sixty-six hundred and forty-six and twenty hundredths (6646.20) feet, more or less, to Overpeck Creek; thence upstream of said creek to the line of land late of Samuel Hammond, deceased, formerly of the heirs of Jacob Edsall, deceased, containing in breadth at right angles ' across one hundred and ninety-eight (198) feet, more or less; thence a southeasterly course along the said line of land late of Samuel Hammond, deceased, eighteen hundred forty-eight (1848) feet, more or less, to the middle of the road now known as Grand Avenue; thence a northeasterly course, through the middle of said road, to the line of land late of Samuel Hammond, deceased; formerly of the heirs of Jacob Edsall, deceased, containing in breadth at right angles across one hundred and ninety-eight (198) feet, more or less; thence in a southeasterly course, along the true line of land late of Samuel Hammond, deceased, formerly of the heirs of Jacob Edsall, deceased,-fifty five hundred ninety six and eight tenths (5596.08) feet, to the above mentioned Bogert’s line; thence a southwesterly course, along said land formerly of Bogert, and later of John Edsall, to the place of beginning. Containing sixty (60) acres, more or less. Bounded northerly by land late of Samuel Hammond, deceased; easterly by land formerly of Cornelius Bogert, and later of John Edsall; southerly by land formerly by John Day and now or late of Sidney E. Mors'e, and by land now or late of Samuel E. DeGroot; westerly by Overpeck Creek.
    “Excepting out of the above, the land now owned and occupied by the Northern Railroad Company of New Jersey as a right of way for their railroad.”
    There is no dispute as to the location of this land nor as to the quantity of land contained therein, after -excepting thereout the amount previously conveyed to the Northern railroad of New Jersey. The quantity is agreed, by counsel, -to be fifty-seven acres and eight thousand seven hundred and forty-eight ten thousandths of an acre.
    The defence set up by the defendant is that there should be . deducted from that the amount included within the lines of three highways which cross the tract at nearly right angles, viz., Grand avenue, Broad avenue and Bergen boulevard.
    The tract is extremely narrow and long, being one mile and one-quarter in length and four hundred feet in width for the greater part of its length, and one hundred and ninety-eight feet in width for the remainder, with a jog or offset representing the difference in width at the point where Grand avenue crosses.

      The amount contained within the limits of the three streets above mentioned is two acres and two hundred and thirty-seven thousandths of an acre.
    Just before the date of the conveyance the property had been surveyed by two different surveys — Mr. Serviss, on behalf of the executors of Wright, and Mr. Williams, on behalf of Mr. Alexander, or his representative — and their computation of areas did not entirely agree.
    At or before the hearing of this cause the survey was made by a third surveyor, whose result, as above stated, was adopted by the parties and their counsel in argument.
    The only dispute, then, between the parties is as to whether the amount included in the highway should be counted as part of the land to be paid for.
    The negotiations and preliminary contract were had between the executors and a Mr. Edward H. Ryan, a counselor-at-law of New York City, who was in fact the actual party to the contract. The conveyance to Alexander was made at his request.
    On the 32d of October, nine days before the expiration of the option contained in the contract, the parties entered into a further agreement, which seems to have the effect, if the terms were kept, of extending the option for two years. Be that as it may, at the request of Ryan the conveyance was actually prepared, in December, 1897, and delivered in January, 1898, as above stated.
    While it was being prepared, and before it was actually prepared, the two surveys above mentioned were made, and the question as to whether the consideration-money should be computed upon the whole contents of the survey or only upon that part not included in the highways, was raised by Mr. Ryan.
    In a letter written by Judge Garrick to Mr. Ryan, dated January 10th, 1898, three days before the deed and mortgage were exchanged, is found this clause:
    “In regard to deducting the roads Mr. DeGroot says that ’it has always been customary in conveying farms or country property to include the roads to the middle thereof to ascertain the area. Of course the portion occupied by the railroad is to be deducted.”

      And in a reply by Mr. Ryan'to Judge Garrick, dated January 11th, is found this clause:
    “Referring to Mr. DeGroot’s opinion, that it is or was the custom to measure the streets when farm property was sold, I think Mr. DeGroot will not claim that there was ever any custom that could change a written contract with me. If you were to charge me with the streets, you certainly could not give me a good and marketable title to the streets. I think when Mr. DeGroot reads the contact, that he will decide that the agreement that you and I made regarding the matter-, when I saw you last, was legal and just, and the only correct interpretation of the matter.”
    In a letter of February 5th, 1898, from Judge Garrick to Mr. Ryan, is found this clause:
    “I have received the survey from Mr. Serviss. While the lines and courses do not agree exactly with those of Mr. Williams, the acreage given is about the same or a trifle more. I will have a copy made and send it to you.”
    And on February 16th Mr. Ryan writes to Judge Garrick, and uses this language:
    “I wish you would also let Mr. Mark make a copy of the survey made by your surveyor, as I would like to know exactly what acreage he claims there is in the property. If these two surveyors cannot agree, it will be necessary to have the property surveyed again by a third party.”
    And again, on the 24th of February, he writes to Judge Garrick, and in that letter he uses the following language:
    “Of course, your surveyor may be right; I do not know anything about it. I have asked Mr. Williams to resurvey the property. I did so as soon as I received your survey. He was ill at the time, and his clerk said he would attend to it- as soon as lie was able. I have heard nothing from him yet. Of course, if the amount that you require should- be more than would be actually your due, when a final settlement was obtained, you could pay it back; thoug-k I would prefei- to pay only what I ought to pay. Just as soon as I can find a little spare time, I will arrange for a meeting with you, and we- will go oyer the whole matter; and I think that we will be-able to agree upon a settlement.
    “I have never sued anybody, I have never been sued, and I have never arbitrated -any matter, and I desire only what is light in this case; and I believe that you and I can settle the Whole question without calling in any third party.”

      And again, April 5th, 1898, Mr. Ryan writes to Judge Garrick, using this language:
    “I know that your surveyor made a mistake as to the width of the Bergen County Boulevard; it may be the only mistake that he has made in his life; but the fact that he did make a mistake there would incline me to the belief that Mr. Williams was quite as likely to be right as the other man.
    “Of course I know there was not two acres difference in the amounts found by these men, and I use these numbers just to illustrate what I mean. Again, how would it do for me to pay for one half of the streets. Now, I certainly believe, that under our contract, that I ought not to pay for one foot of the present public highway. I believe that I am under no obligation whatever to pay for any part of the highway. It would make no difference what the custom was in conveying farm land, for, while we describe this property as ‘a certain farm,’ it would be easy enough to show that it was not purchased for farm purposes, and that no property is worth the price that I paid for this property for farm purposes; and the release, which was provided for; it was an evidence that it was intended to be used as lots, and not as a farm; and in addition to that, the clause in the contract which requires you to give me a good and marketable and indefeasible title to the property that I am to pay for, would certainly exclude the streets. However, I am a man of peace; and if we can reach a settlement that does not require me to do myself too great an injustice, I prefer to settle.”
    On the 8th of March, 1898, fox a large cash payment, the executors released to Mr. Alexander a portion of the premises by the following description:
    “Beginning at a point in the middle of Grand Avenue, distant at right angles two hundred and fifty (250) feet northeasterly from the southerly boundary line of the farm formerly belonging to Naomi C. E. Wright now deceased and which was conveyed by the said party of the first part to John E. Alexander by deed bearing date December thirtieth, eighteen hundred and ninety-seven ; thence running southeasterly and parallel or nearly so with said southerly boundary line and distant at right angles two hundred and fifty (250) feet northeasterly therefrom five thousand and fifty one (5051) feet more or less to the middle of the Bergen Boulevard; thence northeasterly along the middle of said Boulevard one hundred and fifty feet more or less to the line of land of Samuel Hammond deceased, formerly of the heirs of Jacob Edsall deceased, thence northwesterly along the true line of land late of Samuel Hammond deceased, formerly of the heirs of Jacob Edsall deceased five thousand and twenty-nine (5029) feet more or less to the middle of Grand Avenue, thence southwesterly along the middle of Grand avenue to the point or place of beginning.”

      On the 23d of May, 1898,-Mr. Ryan wrote to Judge Garrick, asking for a settlement and threatening suit.

      Mr. Otto Grouse and Mr. Randolph PerTcins, for the complainant.

      Mr. George G. Tennant, for the defendant.
   Pitney, V. C.

There was no assertion or contention, or room for any, that any fraud or misrepresentation was practiced upon Ryan in the making of his contract, or that he was not fully acquainted with the premises and the existence of the highways thereon. Moreover, he is a member of the bar of New York and presumed to be acquainted with the law of the land. The contract of sale was therefore a fair one. If he did not intend at the time he entered into it to pay for that part of the land included within the highways, he should have made provision for it at that time. The general description found in the contract includes the high-ways. The description by metes and bounds found in the actual conveyance is in precise accord with the general description contained in the contract. On all these points there is no dispute, so that if the case stops just there, it seems to me, there would be no room for doubt. But it does not stop there. It appears, by the letter of Judge Garrick of 10th of January, 1898, prior to the delivery of the deed and of the mortgage, that the question of how the acreage was to be arrived at, and whether the amount of acreage included within the limits of the highways was to be counted and paid for, was raised between Mr. Ryan and Judge Garrick, and Judge Garrick stated in that letter, in effect, that he should insist that the amount in the highways should be included and paid for. Now, in that state of affairs the bond and mortgage are executed, and by their explicit terms, as above set forth, the quantity of land in the limits of the survey, “exclusive of the part owned by the Northern Railroad of New Jersey,” should be the basis of the consideration-money. The language states, with the utmost precision, jnst what part of the lands included within the survey should be counted in making up the consideration-money. It seems to me that it is impossible' to escape this result.

The provision for the exclusion of the amount occupied by the Northern Railroad of New Jersey is conclusive evidence that the land included within the limits of the highways should be included. The maxim, inclusio unws exclusio alterms,, applies.

In answer to this, the counsel for defendants rely upon the little contract of January 13th, añade at the tune the deed and mortgage were- severally delivered, and it may here be observed that the deed of conveyance contains no covenants whatever.

Now, I am raoaable to- find aaaything in that little contract which alters the situation as it is found in the deed and conveyaaaoe, except that it anay reserve to Mr. Ryan the right to sue the executors for a breach of contract in not conveying all of the laaad free aaid clear of encumbrance, and that right I shall assuaaae iaacluded the right to set off such damages against the aanouait due oaa the anortgage upon a final accouaitiaig. There is aaothing in the coaitract just naaned which justifies or in any way sustaiais the notioai that iaa computing the area of the land eontaiaaed within the descriptioai for the purpose of ascertaining the coaasideration-anoney, any allowance was to be made for the aanount iaicluded in the highways. Nothiaog iaa the origiaaal contract supports that notion, and nothioag in the conveyance or anortgage saapports it. It simply says that the amount of the board and mortgage is to be adjusted arad the fulfillment of 'the contract is to be completed according to the terms contaiaaed in said coaatract. That has been done with great care and accuracy. By the'terms of the contract, the highways are uaadoubtedly included.

It seems to me that the point of view most favorable to the defendant from which to consider the effect of the contract of January 13th is to suppose the complainant was here now with a bill for -the specific performance of the original contract of 1897, arad I will so consider it.

■The universal practice is, arad always has been, in New Jersey, to include in • a conveyance, without excepting or noting the same, all highways which cross or lie upon the land conveyed, and where it does not appear by the description that a highway-is included1 the presumption is that the title goes to the centre of any highway adjoining the premises conveyed.

I am not aware of any case in New Jersey - where a considerable tract of land, like the present, has been sold by the acre; that in the absence of a specific provision any deduction has ever been made in the contract price, either on specific performance or on foreclosure of a purchase-money mortgage, on account of the existence of highways within the limits of the survey, where those highwaj's were open and visible to the eye.

I am not aware that it has ever been decided in New Jersey that the existence of a highway upon a tract of land, and included within the metes and bounds thereof, amounts to a breach of covenant against encumbrances. It has been held in Pennsylvania that it does not, and I believe; also, in New York. Rawle Cov. Tit. (2d ed.) 141-147 (1854). And, certainly, the sentiment of the profession in this state is'to that effect, else there would have been innumerable actions for damages for breach of warranty on account of "the existence of highways on or across lands. The simple reason for this is that they are patent encumbrances which cannot be removed, and an action for damages on account of their existence would produce, in ninety-nine cases out of a ..hundred, no more than nominal damages.

The eases referred to by counsel for 'the defendant on shortage of acreage have no application here. There is here no shortage of acreage nor any defect of title to any part of the premises, except, indeed, that conveyed to the railroad company. Title to the part covered by the streets is completé, subject, however, only to the encumbrance of the public highway.

The utmost that defendant could claim, under the most favorable aspect that could be taken of its case, would be that it was entitled to a reduction from the purchase-money for the amount which the encumbrance of the highway reduced the land in value. No evidence was produced on that point, but it was well said by complainant, in his argument, that it is plain that the existence of the highways increases, rather than diminishes, the value of the property.. A glance at the map shows that the taking away of any one of the three highways which cross the land’would be a. positive detriment to it for the purpose for which it was undoubtedly purchased, viz., the laying of it out in building lots, and the taking away of all the highways would well nigh ruin it for that purpose.

I will advise a decree according to complainant’s contention,


source: Caselaw Access Project

author: Pitney, Y. C.

license: Public Domain

text:
    Thomas Ryan, individually and as executor, &c., of Anne Ryan, deceased, v. James Dodds and Robert S. Hudspeth.
    [Filed January 20th, 1904.]
    A will gave testatrix’s husband a life estate in certain land, and directed the land/ to be sold at the husband’s death and the proceeds divided among nine persons, and further gave the executor “full power to do all that is needed to the full execution thereof, to sell and convey, by deed or otherwise, real and personal property; to make all payments, divisions and dispositions herein provided.” — Seld, that the power of sale was given merely for purpose of distribution after the husband’s death, and did not empower the executor to sell before that time.
    On bill for specific performance. On final hearing. .

      Mr. J. Frank Finn, Jr., for the complainant.

      Mr. Henry Pusier, for the defendants.
   Pitney, Y. C.

.The bill is. filed for the purpose of enforcing a contract made between the parties for the conveyance by complainant and defendants of two adjoining lots, situate in Jersey City. By the terms of the contract one of the lots was to- be conveyed to Judge Hudspeth and the other to Mr. Dodds, who owned respectively the lands on each side thereof, and, while the title was to be distributed in that manner it is fairly inferable, from the form of the contract, that it was to be completed as a whole or not at all, that is, unless the complainant could make a good . title to both lots neither of the vendees were obliged to perform, and counsel for the complainant seems to accept .that view.

The defence is that as to one of the lots the complainant is unable to give a merchantable title.

The admitted fact is that Anne Ryan, the wife of the complainant, Thomas Ryan, died seized of one of the lots, and the complainant asserts that he is able to. make a merchantable title thereto by virtue of a power of'sale'contained in her will, and that depends upon its true construction.

The parts of the will upon which the power of sale must depend are as follows:

“2. X give, devise and bequeath, all my real estate, wherever situate and in particular my house and lots of land on Hooker Avenue in pocalled Greenville Jersey City New Jersey to my husband Thomas Ryan to have and to hold the same during his natural life and on his death X direct that all the said real estate be sold and I give devise and bequeath the proceeds thereof and direct that the said proceeds be paid over as follows to wit:”

'Then follow bequests to nine persons of distinct shares, varying in quantity of the proceeds of such sale.^

Then comes the following: “As soon as possible after my death I direct payment of my personal estate of the gifts, bequests and legacies following, to wit:” Then follow eight bequests of personalty.

Then follows the gift of the residue to her husband and the power of sale, upon which the complainant relies, in the following language:

“I give, devise and bequeath ail the rest, residue and remainder of my estate real ¿nd personal unto my husband Thomas Ryan and his heirs forever! ' ' 1 '
“I nominate and appoint my husband Thomas Ryan and 'William O. Prime (.son of. Ralph E. .Prime of Yonkers New York) executors of this my last will, and I give them full power's to do all that is needed' to' the full execution of this my last will and I' give them full powers to do all that is needed to'the full. execution thereof to sell and convey by deed .or otherwise real and personal property, to make all the payments divisions and dispositions herein provided with power to the survivor of them 'to act alone, to sell and convey by de'ed or otherwise real or personal estate and make the distribution and payments provided as well as they could be made by two executors. , I empower them to collect all moneys due me from any person, persons, associations, corporation or in any manner Whatever; I direct that no bond or security of any kind be required from them or either of them,' in any state or county by any court of probate surrogate or other authority whatever.”

It will be observed that the first clans? above cited gives a distinct power of sale at the death of the tenant for life for the purpose of dividing the proceeds among those persons to whom those proceeds are given. The last part of the will gives such a power of sale and transfer of personalty as is necessary to the proper execution of the will, and further gives the right to the survivor of the two executors to convey the land and make the distribution.

The co-executor, Mr. Prime, has renounced and letters were issued to the complainant solely.

I shall not go into the question whether the statute, authorizing one of two or more executors to make conveyance of land, applies to a case like this, because, if Mr. Prime is still living, he can perhaps be induced to join in the deed. For, upon the main question of the case, my opinion is that the power of sale is not sufficient to authorize the proposed conveyance, even if joined in by both executors. I conclude that the better opinion is that at the death of Thomas Byan the persons named as distributees of the proceeds of the sale of his real estate will have the right to come forward and claim that the land, as it shall then be found, shall be sold, and that a conveyance made at this time by the executors would not affect that right.

In equity the effect of the devise is to give a life estate to1 the husband with remainder to the nine persons named. These persons take at once a vested interest and have the option at the death of the life tenant to take the land itself instead of :the money. In short, I think the power of sale is given only for the purpose of distribution, and in, aid of this view it is plain from the reading of the w.hole will that the testatrix did not contemplate having a fund in money or personal securities resting in the hands of the exeeutors during the lifetime of her husband.

I shall advise that the bill be dismissed, with.costs.