author: O’Brien, J.

text:
    Julia M. Crane, Resp’t, v. Seneca D. Powell, App’lt.

      (Court of Appeals,

      Filed October 3, 1893.)

    Statute of frauds—Pleadikg.
    It is necessary for a defendant who intends to avail himself of the benefit of the statute of frauds as a defense to an action for damages for breach of a verbal agreement within the statute, to specifically plead it.
    (Earl and Peckham, JJ., dissent.)
    Appeal from judgment of the New York common pleas, general term, modifying and affirming a judgment for plaintiff entered upon the verdict of a jury.

      Henry Major, for app’lt; John W. Weed, for resp’t.

       Affirming 46 St. Rep., 668.

   O’Brien, J.

The plaintiff recovered damages for the breach of an agreement, which, on the trial, appeared to be oral. The complaint alleges that the plaintiff, in the month of October, 1887, was in the possession under a lease of a house in the city of New York, and that she entered into an agreement with the defendant whereby the defendant leased from her, for the term of one year from the first day of November, 1887, the two front rooms on the second floor, and the back parlor and extension room, with the use of the front parlor on the first floor, with board and attendance to be furnished during the time by the plaintiff for the defendant and his assistant or associate in business, for the sum of $3,250, payable in equal monthly payments of $270.83 in advance. The defendant was a practicing physician, and the rooms were intended, in part, at least, to serve the purpose of an office, in which the defendant was to carry on his • business. The defendant, in pursuance of this agreement, entered into and took possession of the rooms, and used them for the purpose intended, and he and his associate were furnished with board and attendance until the month of June, 1888, when, without the consent of the plaintiff, he abandoned the premises, and refused to further perform the agreement on his part, though the plaintiff was at all times ready and willing to perform on her part. It was also stipulated, as a part of said agreement, that the defendant, for the purpose of his business, should have the privilege of affixing in a suitable place on the front of the house his business sign, and that in pursuance of' that right, conferred by the agreement, he did affix, upon taking possession on the first of November, at the side of the front door, a metallic sign, with his name and professional business upon it, and also words and figures indicating when he could be found by patients and callers at his rooms in the house. The judgment appealed from was recovered by the. plaintiff as damages for a breach of this agreement.

It appears that he paid the stipulated monthly payments only up to June 1, 1888, and the plaintiff claims that on or about July 1st thereafter, in consequence of the defendant’s refusal to further perform his agreement, her home and business was broken up and she was obliged to surrender her lease, which then had about two years to run, to her landlord. The jury allowed the plaintiff for the month of June the whole of the monthly payment, but the general term modified the damages for that month by deducting what it would actually cost the plaintiff to furnish board for two persons during that time, and for the four remaining months of the time the plaintiff recovered only the profits which she would have made had the defendant performed. The defendant’s answer admits that during the time he was engaged in business as a physician, and that the plaintiff, at the time of the alleged agreement, was the lessee of and in possession of the house, and all the other allegations of the complaint were denied, but no other defense was pleaded. At the trial it appeared that the contract sued upon was not in writing, but the defendant made no objection to oral proof to establish it, and the plaintiff was permitted, without objection, to testify to a verbal agreement to sustain the allegations of the complaint. When the plaintiff rested, however, and again at the close of the case, the defendant moved to dismiss the complaint, on the ground, among others, that as the agreement was riot in writing, and as it was not to be performed within one year from the making thereof, it was void by the statute of fi-auds. The court refused to rule in accordance with this request, and the defendant excepted. The defendant, in his own behalf, testified that there was no time specified for the duration of the agreement, and there was a sharp conflict in the evidence between him and the plaintiff, who claimed that it was to last for one year. The plaintiff’s version of the transaction was sustained in some degree by circumstances and by proof of admissions claimed to have been made by the defendant. That question was submitted to the jury by the learned trial judge, with proper instructions, and the verdict must be taken as a conclusive determination of the issue. But the learned judge distinctly ruled and charged the jury that the defendant was in no position to urge the invalidity of the contract under the statute of frauds, by reason of his omission to plead that defense, and to the ruling and the charge to the same effect there was an exception.

The result in the courts below thus turned upon the omission of the defendant to plead the statute, and the first and perhaps only question presented by the appeal is one of pleading. Preliminary to that question it should be observed that contracts that by their terms are not to be performed within one year were valid at common law though not in writing, but the statute enacted that thereafter such agreements should be void unless reduced to writing, and, therefore, a new defense was created with respect to such agreements as were within the statute The statute of frauds does not prohibit the making of any agreement in any way that the parties may see fit, nor render them illegal or immoral if not made in some particular way. It simply requires that certain agreements must be proved by a writing. It introduced a new rule of evidence in certain cases without condemning as illegal any contract that was legal before. The vital fact that was in issue in this case was whether the agreement set forth in the complaint was made. The jury found that it was, and it might be a question whether this court can review that finding upon the record as it stands. The motion to dismiss the complaint presents the question whether there was any evidence of the contract, and nothing else. If there was any proof to establish the agreement .sued upon or tending to establish it (within the rules sanctioned by this court), then the finding is beyond the power of review and is conclusive. A material fact may sometimes be found by a jury upon other than strictly legal evidence. When proof is offered to establish it that is not of the quality or character required by law, and it is not objected to, the other party is deemed to assent to another mode of proof of an inferior or secondary nature, and when such proof is in the case the error, if any, is not reached by a motion to dismiss the complaint How, the plaintiff in this case gave proof of an oral agreement which showed that the minds of the parties met, and that there was mutual assent with reference to the subject-matter, and this is ordinarily the very essence of a contract. It tended to sustain the complaint, as the defendant did not elect to insist upon the statutory form of proof, but virtually assented to the mode of proof that had always been sanctioned by the rules of the common law. Under these circumstances, it seems to me that we cannot say that the finding of the jury is without any evidence to sustain it, or that the defendant’s exception to the refusal of the trial judge to dismiss the-complaint is good.

In Flora v. Carbean, 38 N. Y., 111, it was held that where' testimony tending to establish a material fact, although incompetent in its nature, is received without objection, the-party has a right to insist upon the facts shown thereby or based thereon. Sharpe v. Freeman, 45 N. Y., 808; Matter of Yates, 99 id., 101.

So it was held in Howard v. Sexton, 4 N. Y., 157, that a witness might be convicted of perjury in falsely swearing to a parol promise within the statute of frauds, although that mode of proof would have been incompetent if objected to.

Judge Gardner, in the opinion of the court, remarked: ICThe evidence was material, for it proved the promise. It was not, perhaps, competent, if the objection had been taken in season. All secondary evidence becomes incompetent if objected to. But if the parties choose to rely upon it, a witness is not thereby absolved in conscience or law from his obligation to speak the truth.” The defendant’s contention upon this appeal cannot be sustained, unless we hold that the plaintiff’s testimony, showing an agreement by parol, amounted to nothing and must now be treated as if not given. - The experience of any one familiar with trials in the first instance is that nothing is more common than to give proof of facts which is not strictly competent, but which, if not objected to, may be the basis for findings which are beyond the power of this court to review. The defendant’s exception to the refusal to dismiss the complaint raises no question here, except the presence in the record of any evidence whatever for the consideration of the jury upon the issue raised by the answer as to whether the agreement alleged in the complaint was made or not. There were, according to some of the cases, two methods in which the defendant could have raised the question that he is now seeking to review, namely, by objection to the proof given, or by specifically pleading the statute of frauds as a defense. But he has omitted to avail himself of either the one or the other. When the statute is set up as a defense, the objection to any other mode of proof than that required by the statute is to be deemed as made in advance, and the defendant may raise the . question at any time before the case is submitted to the jury. If the defendant neither pleads the statute nor objects to what may be called the common-law proof of the agreement, it ought to be held,' I think, even upon the authority of the earlier cases, that he has waived the objection.

These views are confirmed and illustrated by the application of a principle which is settled beyond debate. When the complaint alleges a verbal agreement within the statute, and the defendant, by his answer, admits it without pleading the statute as a defense, he is deemed to,have waived its benefits. Cozine v. Graham, 2 Paige Ch., 177 ; Vaupell v. Woodward, 2 Sandf. Ch., 143; Harris v. Knickerbacker, 5 Wend., 638; Brown on St. of Frauds, §§ 135,508; Duffy v. O'Donovan. 46 N. Y., 226; Marston v. Swett, 66 id., 206.

Now, all that the defendant admits in such a case is the existence of a verbal agreement, void by the statute. But, nevertheless, the law treats it as valid and binding, since the defendant, by omitting to raise the question at the proper time and in the proper way, is deemed to have waived the necessity of proof such as the statute requires.

If this constitutes a waiver, why not hold that any other course equivalent to it is a waiver also ? What real difference can there be in principle between such a case and the one at bar, where the defendant, failing to plead the statute, allowed verbal proof to be given of the agreement alleged in the complaint at the trial without objection? It is difficult to show that there is any satisfactory distinction in reason between the two cases. But the imporant question in the case, and upon which we prefer to let the decision rest, is whether, in the light of the adjudged cases, it is not necessary for a defendant who'intends to avail himself of the benefit of the statute, as a defense to an action for damages for breach of a verbal agreement within the statute, to specifically plead it.

It is safe enough to premise that the authorities are not all in harmony on this question, any more than they are upon many /other questions with respect to the constitution ana application of the statute itself. In England, under the rules framed in pursuance of the judicature act, and in some of our sister states, it is necessary to plead the statute. Am. & Eng. Ency. of Law, 747, vol. 8, note 2 ; Graffam v. Pierce, 143 Mass., 386; Lawrence v. Chase, 54 Me., 196; Farwell v. Tillson, 76 id., 227; Bird v. Munroe, 66 id., 346; Boston Duck Co. v. Dewey, 6 Gray, 446.

In this state cases may be found where the opinion is expressed that the defendant may avail himself at the trial of the benefit of the statute, under the general issue, by objection to verbal proof of the contract. Some of these cases, and perhaps the principal ones, have already been cited to show when and now the defendant is deemed to have waived the benefit of' the statute by admitting the allegations of the complaint. It is proper, I think, to observe that they are cases where the complaint was admitted in some way or the decision was before the Code or founded upon authority antecedent to it. The recent cases in this court sustain the view that it is necessary to plead the statute. In Porter v. Wormser, 94 N. Y., 450, Judge Andrews said: “The general rule is that the defense of the statute of frauds must be pleaded. * * * It cannot be doubted that if the defendants had brought an action to recover a balance claimed to be due on the contract for the purchase of the bonds without disclosing whether the contract was oral or written, the plaintiff would have been bound to plead the statute to avail himself of its protection.” In that case the plaintiff had recognized the existence of the contract by bringing an action upon it, and it was held that he was not in a position to question the validity of it under the statute.

In Hamer v. Sidway, 124 N. Y., 538; 36 St. Rep., 888, the action was against the executors of a deceased person upon a verbal promise to his nephew that he would give him a large sum of money at twenty-one, if, in the meantime, he would abstain from the use of liquor, cigars, billiards, etc. The promise was confirmed by a letter from the uncle after the boy became of age. It was insisted that the promise was within the statute. After stating that the deceased had waived the defense by his letter and statements subsequent to the time of performance, the court, •Parker, J., delivering the opinion, said: “ Were it otherwise, the statute could not now be invoked in aid of the defendant. It does not appear on the face of the complaint that the agreement is one prohibited by the statute of frauds, and, therefore, such defense cannot be made available'unless set up in the answer.” In Wells v. Monihan, 129 N. Y., 161; 41 St. Rep., 409, the action was upon a written-promise to pay the debt of another without expressing any consideration, and it wás urged upon the argument here that it was void under the statute. Passing upon that point, Judge Finch said: “ So far as the defense in this case rests upon the statute of frauds it must fail for two reasons: ISTo such defense has been pleaded, and it is not raised by the averments of the complaint, and without one or the other of these conditions the defense, if existing, cannot be made available.”

Without referring to other cases in which the precise point does not seem to have been discussed or noticed, sufficient appears to show the tendency of late decisions in this court. They announce a rule well settled and familiar in analogous cases. The statute of frauds is a shield which a party may use or not for his protection, just as he may use the statute of limitations, the statute against usury, that against betting and gaming, and others that might be mentioned. I take it to be a general rule of universal application that the statutes last mentioned are not available to a party unless specifically pleaded, and there is no reason for making the statute of frauds an exception to the rule.

The present system of procedure is founded upon the idea that litigants should, when possible, know in advance the precise questions they must meet at the trial. When a contract is set out in the complaint as the cause of action, and the defendant intends to assail it on some special or statutory ground, the general spirit of the system is not complied with unless notice is given of this intention to the opposing party by the pleadings.

In the solution of this question the provisions of the Code should not be overlooked. The statute may be used as a defense to actions on certain agreements. A defense must now be presented either byylemurrev or answer. Code, § 487.

When the defect in the plaintiff’s cause of action appears on the face of the complaint, the defense must be interposed by demurrer. § 488. When the complaint does not, as in this case, disclose an invalid agreement upon its face, but it is, in fact, invalid for some reason, the defendant must take the objection by answer, § 498, and if the objection is not taken in either way, the defendant is deemed to have waived it. § 499. The conclusion is thus reached that the defendant waived the benefit of the statute in this case by omitting to plead it

It is claimed by the learned counsel for the plaintiff that the agreement, as pleaded and proven, was not within the statute since it amounted to a renting of apartments in a city house for business purposes, with board and lodging added, and was, therefore,good as a verbal lease for one year. Blumenthal v. Bloomingdale, 100 N. Y., 558; Laughran v. Smith, 75 id., 209; Reeder v. Sayre, 70 id., 184; Oliver v. Moore, 53 Hun, 472; 25 St. Rep., 37 ; S. C., affd., 131 N. Y.,_589; 42 St. Rep., 949.

It is unnecessary to consider this question, as the conclusion reached with reference to the question of pleading is fatal to the appeal.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Earl and Peckham, JJ., dissenting.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    Mary N. Townshend, App’lt, v. Ellen L. Thomson et al., Resp’ts.

      (Court of Appeals,

      Filed October 3, 1893.)

    1. Ejectment—Title—Mortgagee m possession.
    A purchaser at a mortgage foreclosure sale, defective and void as against the owner of the equity of redemption because he was not made a party to the foreclosure actio.i, becomes assignee of the mortgage, and if he lawfully enters into possession of the real estate he becomes a mortgagee in possession.
    2. Same.
    A mortgagee who has lawfully taken possession of the mortgaged premises cannot be ousted or deprived of his rights 'as such by the mere intrusion of the owner of the equity of redemption against his will or without his knowledge. He need not stand upon the land with a club to keep off intruders, nor need his continued possession be of such a character as is required by the statute to create a title by adverse possession. If the land be uninclosed he is not bound to inclose it or to cultivate it.
    3. Same.
    A mortgagee once lawfully in possession of the land, who has been wrongfully deprived of the possession by the mortgagor or any other intruder, may resume his possession if he can and again hold the pledge in possession.
    4. Same.
    Defendants, who were subsequent grantees by mesne conveyances from a mortgagee, and were in possession of the lot at the time of the commencement of this action of ejectment and for some years prior thereto, are entitled to the position of mortgagees in possession, and ejectment cannot be maintained against them.
    Appeal from judgment of the New York superior court, general term, affirming judgment in favor of defendants upon dismissal of complaint.

      John Townshend, for app’lt; James Thomson, for resp’ts.

       Affirming 46 St. Rep., 847.

   Earl, J.

This is an action of ejectment to recover a lot of land situate at the southwest corner of Eighth avenue and One Hundred and Seventeenth street, New York city.

The plaintiff’s title does not appear to "be very meritorious, and the court ought not to be very astute to uphold it. Both parties trace their title back to Edward Price, who took a conveyance of the lot in 1827. The plaintiff claims title under him as follows : In 1835 he conveyed the lot to John Scudder and took back a purchase-money mortgage. In 1836 Scudder conveyed the lot to Ebenezer L. Williams, subject to the mortgage. February 4, 1843, Williams was adjudged a bankrupt upon his own petition, under the bankrupt act of 1841, and William C. H. Waddell, the official assignee in bankruptcy, became his assignee, and all his estate at once vested in him; and on the 27th day of May, 1843, Williams received bis discharge from his debts. On March 1,1869, the assignee, by order of the court, sold and conveyedo this lot with five other adjoining lots, to George Law, for tbe consideration of $2,150, and on the 10th day -of January, 1873, Law, for the consideration of $500, conveyed the same lots to the plaintiff.

During all these years, more than twenty-six, before the sale to Law, there is no pretense that the assignee -had any actual possession of the lots, or that he ever exercised any acts of control or ownership over them, except as follows: February 8, 1845, he filed a report in which he stated that these six lots, among other assets, were subject to two mortgages and were of uncertain value and ought to be disposed of at public sale without incurring further expense or delay. It does not appear ■ that any formal order was then made for the sale of these lots. They were marked worthless in an inventory of the assets made by the assignee. He being dead at the time of the trial of this action, his account book, found in the possession of the plaintiff’s attorney, was put in evidence, in which appeared an entry showing that he had sold the lots on the 23d day of March, 1846, for thirteen cents. In February, 1867, the assignee presented a further report to the court, in which he stated that an application had been made to him to procure all the interest which the bankrupt had, and which became vested in him as assignee in the six lots, and that Price had foreclosed his mortgage on the lots without serving any notice on the assignee, and had obtained possession of them, and that the application was to procure his interest in the lots for “a nominal consideration and the costs of the ' assignee and his counsel therein, the title hereby sought being of no pecuniary value to his estate.” Upon this report an order was made for the sale of the property at private sale. In .January, 1869, the assignee made another report, in which he stated again that application had been made' to him for the purchase of the lots for a nominal consideration and the costs of the assignee and his counsel therein, the title sought being of no pecuniary value to the estate. Upon this report an order was made authorizing the sale of the lots at public auction, and as above stated, they were sold and conveyed to Law. It is clearly inferable -that John Townshend, the plaintiff’s husband, and her attorney in this action, instigated these proceedings of the assignee-in the years 1867 and 1869, and that he was his friendly counsel therein. ° .

The fact that the lots were not sold for a nominal consideration must have been a disappointment to some one. It is not probable the man who paid $2,150 for the lots was the person who was seeking to prpcure them for a nominal consideration. But Law as an obstacle was soon disposed of. On the 5th day of February, 1870, John Townshend, without an atom of record title, and, so far as this record discloses, without any title whatever, conveyed the lots to his daughter, for the consideration of one dollar, by a deed containing full covenants, in which was the statement that the lots were then in the occupation of bis -tenant, John H. Bischoff. Law’s title being thus menaced, he. conveyed the lots to the plaintiff at a loss of $1,650, besides interest.

But the final scene in this interesting drama is still to come. Of the purchase money paid by Law, $2,000 was paid to the clerk ■of the court. Steps were immediately taken by Townshend, as .attorney for Wesley S, Yard, receiver of the Trust Fire Insurance Company, to reach this money. The insurance company had obtained against Williams a deficiency judgment in a foreclosure .sale for upwards of $2,000 in October, 1842, and that judgment was specified as a liability of the bankrupt in the schedules .annexed to his petition to be declared a bankrupt in 1843. Although about twenty-seven years had elapsed since he was ■declared a bankrupt, this debt had not been proved, and, in fact, no debt had been proved. Now Townshend, appearing as attorney for the receiver, caused the debt to be proved, and such proceedings were taken by him (no other debt having been proved), that the whole $2,000, less costs, about seventy-fiye dollars, was paid to the receiver in September, 1870.

The result of all these proceedings in bankruptcy was that Mrs. Townshend had a conveyance of these lots, and some one ■had the proceeds of the sale by the assignee, and the only loser seems to have been Law, who unwittingly bid off the lots at the .assignee’s auction sale.

The plaintiff did not seem to be in haste to take possession of these lots, and indeed it does not appear that she ever took possession of them. In 1875 Mr. Townshend first appeared at the lots, and, as he testified, finding them unoccupied, he then caused a fence to be put around them, which remained there a few months and then disappeared. Before the fence was built, according to the testimony of one of the plaintiff’s witnesses, the lots were occupied by a gardener, and the fence was built to keep him out. It does not appear whether in building the fence Mr. Townshend acted for himself, or for his daughter, or for his wife. He testified that in 1878 he received a notice from the commis.sioner of public works to repair the curb and gutter stones in' front of the lots, and that in compliance with the notice he made the repairs as the agent of his wife. Frederick S. Wieck, one •of the plaintiff’s witnesses, testified that he took from Mr. Townshend a lease of the lots in 1883, and occupied them for about four years, and that he was in possession of the lots now in question before he took the lease. It does not appear that in making this lease Mr. Townshend acted for the plaintiff. These are all the acts of ownership exercised over these lots by Mr. or Mrs. Townshend at any time, and neither of them ever paid any taxes upon the lot, or assumed any of the .burdens of ownership, except the slight repairs to the gutters in front of the lots.

These are the facts and incidents attending the plaintiff’s title • to this lot. The chain of title is apparently complete, and we may assume that it must prevail unless it has been subverted by the facts yet to be stated.

As before stated, Price took back a purchase-money mortgage from Scudder, and that mortgage he foreclosed in chancery. The bill was filed November 21, 1845, and the decree of foreclosure was entered June 11, 1846. Price bid off the property, and the master’s deed to him was executed September 8, 1846, and then lie went into possession of the property and remained in possession until January 26, 1855, when he died intestate, leaving several children, his only heirs at law. Scudder and various junior incumbrancers were made defendants in the foreclosure suit But Waddell was not made a party, and hence, as to him, the foreclosure was ineffectual, and his title remained unaffected thereby. In February, 1858, an action was commenced by one of Price’s heirs against the others for a partition of the real estate-left by him, including the six lots, and judgment of partition was-entered and the property was sold; but no conveyance of this lot was made, probably on account of the defective foreclosure of the mortgage. Thereafter, in December, 1858, for the purpose of perfecting the record title, by foreclosing the rights of Waddell as assignee, an áction was commenced by Price’s administrator to foreclose the mortgage against him. He was named in the action individually, and not as assignee. He appeared in the action, and on the consent-of his attorney a judgment of foreclosure was entered; and in pursuance of that judgment the property was again sold and conveyed to Mrs. Coulter, one of the heirs, January 28, 1859. This-foreclosure will still ineffectual to cut off the rights of the assignee, because he was not made a party in his representative capacity. The foreclosure was, however, believed to be effectual until, m 1889, we held in the case of Landon v. Townshend, reported in 112 N. Y., 93; 20 St. Rep., 223, that it was ineffectual on the-ground stated. The other heirs of Price conveyed their interests in the lots to Mrs. Coulter at various times between the fore-closure sale and March 25,1863. The subsequent conveyances off the lot were as follows : Mrs. Coulter to Donovan, April 10, 1863 ;■ Donovan to Adams, May 8, 1863; Adams to Whitbeck, March 25, 1864; Whitbeck to Andrew, April 1, 1867, and Andrew to-William Thomson, March 9,1868. Thomson died January 13,. 1872, leaving all his right and title to the lot to these defendants, his widow and children. It thus appears that the defendants’ chain of title is complete but for the defective foreclosure of the Scuddermortgage; and we will assume, without passing upon other-grounds, of .defense presented for our consideration, that the defendants must rely for their defense upon that mortgage and. the possession of the lot by them and their predecessors.

A purchaser at a mortgage foreclosure sale, defective and void1 as against the owner of the equity of redemption because he was-not made a party to the foreclosure action, becomes assignee off the mortgage, and if he lawfully enters into possession of the-real estate purchased he becomes a mortgagee in possession. Robinson v. Ryan, 25 N. Y., 320; Winslow v. Clark, 47 id., 261; Miner v. Beekman, 50 id., 337; Thomas on Mortgages, 2d ed.,. chap. 8. Therefore, when Price purchased at the defective foreclosure sale in 1846, he became assignee of the mortgage ; andi when his administrator again foreclosed the mortgage in 1859,. and Mrs. Coulter became the purchaser, she became the assigneeof the mortgage; and the mortgage passed to the subsequent, grantees of the real estate, and to these defendants upon the death of the last grantee. It is undisputed that Price, under his purchase at the foreclosure sale, entered into possession of this lot, and continued to possess it until his death in 1855. His entry was lawful under color of right, and was acquiesced in by Wad-dell, the assignee. After his death his children, including Mrs. Coulter, were in the possession of the lot through their tenants, and that possession, with some interruptions, has been continued by these defendants and their predecessors to this day. This lot was generally uninclosed, and was used as a garden by market gardeners. In the winter it was necessarily unoccupied, and in the summers it was cultivated and possessed in that way. Price having taken lawful possession, never surrendered his possession. His children took possession from him, and neither they nor any of their successors in the title voluntarily surrendered the possession, or ever intended to abandon the possession. They always paid the taxes upon the lot, and always claimed title to the same. Their position as mortgagees in possession having been once acquired, continued unless they in some way surrendered or abandoned it. It was not destroyed by the unlawful interference of Townshend or any other person. It does not appear that they ever acquiesced in or ever knew of his pretended -possession or interference with the lot

A mortgagee who has lawfully taken possession of the mortgaged premises cannot be ousted or deprived of his rights as such by the mere intrusion of the owner of the equity of redemption against his will or without his knowledge. There must be some act or omission on his part indicating a change in his position. ,The mortgagee who has taken lawful possession of the land pledged for his debt is not obliged to stand upon the land with a club to keep off intruders; nor need his continued possession be of such a character as is required by the statute to create a title by adverse possession. If the land be uninclosed he is not bound to inclose it, or to cultivate it. Having taken possession lawfully, with the assent of the mortgagor or his successor, his relation to the land is not changed until, by some act or omission of his, he intentionally changes it. He may abandon or surrender the possession, or, what is the same thing, he may acquiesce in the possession of the mortgagor or his successors, thereby indicating his surrender of the pledge. Here there is not an atom of evidence tending to show that any of the parties holding under the mortgage ever intended to surrender the land, or that they knew of any possession by the plaintiff or her pretended agent, or by any one under a lease from him or her.

So, too, a mortgagee once lawfully in possession of the land, who has been wrongfully deprived of the possession by the mortgagor or any other intruder, may resume his possession if he can and again hold the pledge in possession. Never having voluntarily surrendered or abandoned the possession, he has not lost his right to the possession, and he may again peaceably enter into possession, and thus be restored to his rightful position as mortgagee in possession. Here it is undisputed that these defendants were in possession of the lot at the time of the commencement of this action and for some years prior thereto. Our conclusion, therefore, is that they are at least entitled to the position of mortgagees in possession, and that hence this action cannot be maintained against them.

As this conclusion is sufficient for the affirmance of this judgment, we do not deem it important to inquire whether the defendants have any other grounds of defense to thq action.

The judgment should be affirmed, with costs.

All concur.


author: Andrews, Ch. J.

text:
    Sarah E. Mellen, App’lt, v. Gordon McKay Mellen et al., Impl’d, Resp’ts.

      (Court of Appeals,

      Filed October 3, 1893.)

    1. Pleading—Demurrer—Construction oe will.
    Testator, who died in 1887, willed all his real estate equally to his wife. and three children, “ their heirs and assigns forever,” directing that the debts be paid, with power to the executors to sell for the purpose of division,, “or for any other purpose that they in their best judgment may think proper,” and to apply the proceeds of such sale or sales m conformity to the provisions of the will. The widow died in 1888, and her share descended to the three children of the testator and the grandchild, and the son deeded his share to plaintiff, his wife. She brought an action for partition in 1888, which is still pending. In 1890 the surviving executor advertised the real estate for sale, whereupon plaintiff brought this action, alleging that the heirs of testator entered into possession and occupation of the property during the lifetime of the widow, and after her death, with the consent of the executors; that no necessity had arisen to sell the property for debt, and that said heirs had elected to take their shares and asked for a construction-of the will (1) that said heirs took in fee simple; (2) that the power of sale was null and-void; (3) that the widow and children had elected to take their shares instead of the proceeds of the sale; (4) that an injunction issue. Held, that the action was not maintainable as an action for the construction of the will of testator.
    2. Same.
    The validity of devises and limitations in wills, or of a power conferred thereby, depends upon and is determinable by legal mies, and their determination must ordinarily await an occasion when, in a legal action or proceeding,' a right under the devise or limitation, or the execution of the power, is asserted by one party or denied by the other.
    8. Same.
    One whose title comes through a devise to a former owner cannot institute an action for the construction of a will which forms one of the links in the chain of title.

      4. Same.
    The fact that the devisees took possession of and occupied and control led land devised as owners, and appropriated the rents and profits, and that one of them brought an action in partition which is resisted by the others, is not sufficient to show an election which will defeat the power of sale in the executors.
    Appeal from the judgment of the supreme court, general term, first department affirming a judgment sustaining a demurrer to the plaintiff’s complaint.
    The plaintiff is the widow of Abner Mellen, Jr., deceased, who died on the 6th day of March, 1890. Abner Mellen, Jr., was the son of Abner Mellen, who died on the 27th day of May, 1887, leaving him surviving his widow, Helen L. Mellen, one son, Abner Mellen, Ji\, and two daughters, and Abner M. Wilcox, son of a deceased daughter. By his will he devised all his real estate to his wife and his three children, “ share and share alike, to them, their heirs and assigns forever.” His real estate consisted of several pieces of property in the city of New York on Broadway, Seventeenth street and Mulberry street. He appointed his wife, his son Abner and his son-in-law, William 0. Banning, executors of his will.
    The testator directed that his debts and funeral expenses should be paid out of his estate, and he gave a legacy to his grandson, Abner M. Wilcox, and his personal property to his wife and children. The debts and legacies were paid prior to the commencement of this action, except a mortgage debt of $50,000 on the Broadway property, the payment of which had not been required by the holder. By the eighth item of the will the testator gave “ full power and authority ” to his executors, or the' successor of them, “ for the purpose of a division or distribution, or for any other purpose that they in their-best judgment may think proper, to grant, alien, sell and convey, either at public or private sale, all or any real estate ” owned by him at his decease, “ and to apply the proceeds of such sale or sales in conformity to the provisions of "the will.”
    The widow of the testator died on the 28th day of September, 1888, intestate. Her share in the real estate descended to the three children of the testator and the grandchild, Abner M. Wilcox. On the 5th day of November, 1888, Abner Mellen, Jr., conveyed his undivided interest in the real estate left by the testator, devised to him and descended to him from his mother, to his wife, the plaintiff, in payment of a debt owing to her by the firm of Mellen & Co., of which he was a member.
    On the 30th day of November, 1888, the plaintiff, as the owner of five-sixteenths of the real estate, brought an action for partition, making the other tenants in common, together with William 0. Banning, the husband of Helen 0. Banning, one of the devisees under the will of Abner Mellen, Winnifred M. Wilcox, the wife of Abner M. Wilcox, and her husband, Abner Mellen, Jr., defendants. The defendants in the partition action, other than Abner Mellen, Jr., answered, challenging the validity of the conveyance under which the plaintiff claimed title, and. the case was set down for trial on the first Tuesday of April, 1890, but no trial has been had, and the action, so far as appears, is still pending. Abner Mellen, Jr., died on the 6th day of March, 1890, leaving three infant children, who were joined as defendants in the present action, and who demurred to the complaint therein. On the 26th of March, 1890, the defendant William 0. Banning, the sole surviving executor of the will of Abner Mellen, and the husband of his daughter, Helen J. Banning, advertised the real estate of the testator for sale at public auction, under the power of sale contained in the 'will. This action was thereupon brought by the plaintiff against the executor, William 0. Banning, joining therein as defendants with said executor the two daughters of Abner Mellen, Abner M. Wilcox and his wife, and the then infant children of the plaintiff. This complaint set out the facts hereinbefore stated and also other facts, and alleges, among other things, that on the death of the testator, Abner Mellen, his widow and his three children by themselves, their agents or lessees, entered into the use, occupation and possession of the lands devised, as owners thereof, and continued in such possession until the death of Mrs. Mellen, September 28, 1888, and that during all this time they “ exercised control, dominion and ownership over their respective parts or shares in said lands and premises, and collected and received for, and applied to their own use and benefit, the rents, issues and profits of said real estate."
    The complaint further alleges, that from the death of the widow the son and the two daughters, and the grandson, Abner M. Wilcox, were in the possession, use and occupation of the lands, exercising sole control, dominion and ownership and receiving the rents and profits, until the conveyance by Abner Mellen, Jr., of his share of the real estate to the plaintiff on the 5th day of November, 1888, when she entered into possession with the other co-tenants, and they together have ever since controlled and received the rents and profits. -It is alleged that prior to the death of Abner Mellen, Jr., the power of sale had not been exercised by the executors, but that they “ had acquiesced and assented to the, ownership, occupation and use of said lands and premises by the said widow, children and grandson of said testator as aforesaid.” It is alleged that the plaintiff and the other tenants in common in March, 1890, united in extending a lease of the premises on Seventeenth street and Worth street, by writing, for one year from May 1, 1890. It is alleged that all debts, charges and legacies under the will have been paid out of the personal estate of the testator, and that “no necessity had arisen or now exists for the sale of the lands or premises or any portion thereof to pay any of the debts which were owed by said testator at the time of his death, or to pay said legacies or other expenses, or for any other purpose.” It is alleged that the power of sale was void, and the last paragraph of the complaint preceding the demand for relief, is as follows: “Twenty-fourth. That by reason of the premises the said Helen L. Mellen, widow of said testator, and the said Abner Mellen, Jr., Helen J. Banning, Maria L. Kendall and Abner M. Wilcox, even if said so-called power of sale ever had any validity, decided and elected to take their respective parts or shares in said lands and premises instead of the proceeds from a sale thereof under said so-called power of sale contained in said will.”
    The plaintiff, in her demand for relief, asks for a construction of the will (1) adjudging that under the will the widow and children of the testator each took title in fee simple absolute in possession of one-fourth part of the lands and premises devised, and could sell and dispose of their respective shares; (2) that the power of sale given by the will was inoperative, null and' void, and never had any validity, and that the executors, or the successors of them, never had any power or authority under the will to sell the land or any part thereof; (8) that the widow and children of the testator and Abner M. Wilcox, “by reason of the premises,” had decided and elected to take their respective shares instead of the proceeds of sale under the power; and (4) that an injunction issue enjoining and restraining the surviving executor from selling under the power, etc.

      Henry Daily, Jr., for app’lt; Alfred T. Ackert, George Hill and William C. Trull, for resp’ts.

       Affirming 47 St. Rep., 930.

   Andrews, Ch. J.

The action is not maintainable as an action for the construction of the will of Abner Mellen. The validity of the power of sale given to the executors, even if any doubt could be entertained in respect to it, is a question for a court of law as distinguished from a court of equity. It is a question primarily of legal and not of equitable cognizance. There is no •inherent power vested in courts of equity in the construction of ■devises as a distinct and independent branch of jurisdiction, but it exercises this jurisdiction only as incident to its jurisdiction over trusts. Bowers v. Smith, 10 Paige, 193; Monarque v. Monarque, 80 N. Y., 320 ; Wager v. Wager, 89 id., 168.

The validity of devises and limitations in wills, or of a power •conferred thereby, depends upon and is determinable by legal rules, and their determination must ordinarily await an occasion when, in a legal action or proceeding, a right under the devise or limitation, or the execution of the power, is asserted by one party, •or denied by the other. The will in question in this case created legal estates only in the land devised, unaccompanied by any trust. The power of sale given to the executor, while it was in a sense •a trust power, did not create any trust in the land devised, and while it might warrant the executor, upon a question arising, to apply to the court for instructions, the mere fact of the existence of the power did not make a case for invoking in behalf of a devisee, or the grantee of a devisee, the equitable jurisdiction of the court in the construction of wills, within the principles established in this state.

The power of the court over actions for the construction of wills has been extended by statute, and they may be brought in many cases in which, before the statute, the court would have declined jurisdietion. The statute now in force is found in the Code of Civil Procedure, § 1866, which has been considered in two cases in this court. Horton v. Cantwell, 108 N. Y., 255; 13 St. Rep., 615; Anderson v. Anderson, 112 N. Y., 104; 20 St. Rep., 344. The plaintiff cannot maintain the action under this statute for the reason that she is neither heir at law or devisee of the testator, and holds her title, not immediately under the will, but as a purchaser from and grantee of her husband. The plaintiff is in the possession of the land under this title, and it would, we think, be both ■an unreasonable and inconvenient construction of the statute which should enable one whose title comes through a devise to a former •owner to institute an action for the construction of a will which formed one of the links in the chain of title. Moreover, the language of the statute is confined to actions to determine the “ validity, construction or effect of a testamentary disposition.” The question whether the power of sale given to the executor by the will of Abner Mellen is valid does not affect the “ testamentary disposition” made by the testator of his lands. It is collateral to the gift, and whether exercised or not, does not change the substantial interest of the devisees under the will. The statute should be construed liberally in aid of the remedy intended, but it would be unwise to so interpret it as to draw into the supreme court every controversy, however trivial, which could be suggested by a doubt as to the construction of some provision of a will not affecting some substantial interest thereunder.

The claim made in behalf of the plaintiff, that the power of sale given to the executor is repugnant to the prior absolute devise to the widow and children of the testator, and creates a cloud upon the title, and that the action is maintainable in this view, is not tenable. If the power is invalid, its invalidity appears on the face of the will, and it is well settled that where the rights of parties depend upon the legal construction of a written instrument, an action to correct the instrument or to declare it invalid, under the jurisdiction of courts of equity to remove clouds upon title, cannot be maintained. In such cases there is no cloud in a legal sense. Unless the lien, charge or incumbrance is apparently legal and valid, there is no ground for invoking this jurisdiction. The court does not entertain such an action to remove a doubt which might be created in the minds of persons dealing with the title, provided the means of forming a correct legal judgment are patent on the face of the instrument or proceeding by which the existence or non-existence of the right in question must be determined. Bailey v. Briggs, 56 N. Y., 407; Townsend v. Mayor, etc., 77 id., 542, and cases cited.

But there can be no doubt of the validity of the power of sale. There is no repugnancy between a devise in fee and a subsequent power of sale given to the executor for the benefit of the devisees. This is a common incident of testamentary dispositions. The title to the lands vested in the widow and children of Abner Mellen under the devise, and was a fee, subject to the power of sale given to the executor. In case of a sale under the power the title of the devisees in the land would be divested and an interest in the proceeds substituted. Crittenden v. Fairchild, 41 N. Y., 289.

The most serious question in the case arises upon the claim that the complaint states that the power of sale in the executor had been extinguished, before he advertised to sell the lands under the power, by an election made by the devisees and parties interested in the lands to hold them freed from the power of sale. It is a principle now well settled that where by a will money is directed to be laid out in the purchase of land, for designated beneficiaries, or land is directed to be sold and the proceeds distributed, it is competent for the parties beneficially interested, provided they are competent and of full age, and the gift is immediate and not in trust, before the conversion has actually taken place, to elect to take the money in the one case and the land in the other, and when they have so elected and the election has been made known, the power of the trustee for conversion ceases and becomes extinguished, and he cannot thereafter lawfully proceed to execute the power.

This doctrine is founded upon the presumption that such a power is given by the testator for the benefit and convenience of the devisees and legatees, and, unless made so in terms, was not intended to be imperative so as to prevent the beneficiaries from taking his bounty except in the precise form in which the property would exist after the conversion. The doctrine' referred to has been considered and applied by this court in several cases. Hetzel v. Barber 69 N. Y., 1; Prentice v. Janssen, 79 id., 478. Jarman says, 1 Jar., 599, that the expressions or acts declaratory of an intention to make an election, though it is said they may be slight, must be unequivocal, and in Prentice v. Janssen the rule stated in Leigh and Dalzell on Equitable Conversions, “that a slight expression of intention will be considered sufficient,” is quoted with approval.

The devisees of the land in the present case were in a situation to make an election. All the debts and legacies of the testator bad been paid, the devisees were of full age and were the only persons interested in the land or its proceeds. If in fact they had elected to take the land as land, free from the power of sale, prior to the advertisement of the land for sale by the executor under the power, I am of opinion that an action would lie in behalf of the parties interested to enjoin the executor from selling under the power. It is not necessary to consider what would be the right of a purchaser in good faith, without notice, on a sale by the executor in assumed execution of the power, after the power had been terminated by an election. A sale under such circumstances would at least create a cloud on the title, and an action to enjoin the sale would be an available and proper remedy. See Butler v. Johnson, 111 N. Y., 204; 19 St. Rep., 85.

But we are of opinion that the complaint is insufficient to sustain this cause of action for the reason that it is neither directly-alleged that the plaintiff and the other persons interested and deriving title as original devisees of Abner Mellen, or under them, had elected to take the land in its unconverted state, freed from the power of sale, nor are any facts averred from which an election can be legally inferred. The allegation that the devisees took possession of and occupied and controlled the land devised as owners, and appropriated the rents and profits, is not inconsistent with an outstanding power of sale in the executor. The devisees had the legal title to the land as tenants in common, and as such had the right to the possession and to the rents and profits. They may, nevertheless, have desired that the power of sale should continue in the executor, for convenience in passing the title upon a sale, or for other reasons. The commencement of .the partition action by the plaintiff naturally signified her election, and if all the other parties interested had joined in asking a partition, this would, I think, have amounted to an election that the power of sale in the executor should not be exercised. It would show an intention by all the parties interested to sever the tenancy in common and take their respective shares of the land in severally. But the other parties interested resisted the partition, and an election by one of the parties, without the concurrence of the others, would hot defeat the power.

A long lapse of time, during which a power of sale remained unexecuted, where there was no obstacle to its execution, might alone, or with other circumstances, affect the presumption of an election. In Kirkman v. Miles, 13 Ves., 338,.Sir William Grant was of opinion that two years was too short a time to presume an election (see, also, Brown v. Brown, 33 Beav., 399), and Jarman says (vol. 1, p. 600): “But possession for two or three years by tenants in common (without more), has been held insufficient.” In the present case less than three years had elapsed between the death of the testator and the advertisement of sale by the executor. The renewal of the lease of some of the property, in March, 1890, by the parties owning the land, for the period of a year, would be a significant and probably a decisive fact showing an election, if the act was inconsistent with the continued existence of the power of sale.

Great weight was given by Lord Hardwicke in Crabtree v. Bramble, 3 Atk., 680, to the circumstance that the parties beneficially entitled, under a will, had executed a lease of the premises for a term, upon the point of an election. But in that case the trustee for sale took under the English- law title to the estate as trustee, and the lease was in hostility to his right, and thelessors had bound themselves to make good the lease. The act was inconsistent with the continuation of the power of sale, and was significant of an intention on the part of the lessors to take the land and not the proceeds.

The lease, in the present case, bound the land, and was made by the legal owners, and was not in hostility to the power of sale. A purchaser under the power would take subject to the lease.

We fail to find any evidence in the facts alleged in the complaint, certainly no “ unequivocal ” evidence, of an election subverting the power of sale, and no allegation that such an election had been made.

The concluding allegation in the complaint, that “ by reason of the premises ” there was an election, etc., simply refers back to the preceding allegations as ground for this conclusion, and they furnish no sufficient evidence thereof.

We think the demurrer was properly sustained, and the judgment should, therefore, be affirmed.

Judgment affirmed, with costs.

All concur.


author:
Gray, J.
      Maynard, J.

text:
    James W. Holloway, App’lt, v. Charles F. Southmayd et al., Resp’ts.

      (Court of Appeals,

      Filed October 10, 1893.)

    Deed—Description—Easement—Discontinuance of highway.
    Even if a deed bounding the premises on a road or highway does not convey the fee of the soil of the road to the grantee, the grantor, by so bounding it and by including the easements and appurtenances thereto belonging, impliedly warrants to the grantee that so much of the road should perpetually exist as au open way as bordered upon the premises granted and, in legal effect, grants such usual and more or less necessary easements as would be comprehended in the free flow of light and air over and in the free use of the open way as such, which will survive the extinguishment of the public easement in the highway by act of law; and m an action of ejectment after discontinuance of the highway, the grantor is not entitled to judgment for the unqualified possession of the land, but only to judgment for the possession subject perpetually to the grantees’ right to the enjoyment of their easement.
    (Earl, Finch aud O’Brien, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, first department, reversing judgment iii favor of plaintiff in an action of- ejectment.

      James A. Deering, for app’lt; Wm. G. Choate, for resp’ts.

       Affirming 45 St. Rep., 895.

   Gray, J.

The land, possession of which is claimed, comprises what was formerly the westerly half of the Bloomingdale road, between Ninety-fifth and Ninety-sixth streets in the city of New York. Originally it bounded a parcel of land which was conveyed by Charles Apthorp and others to David M. Clarkson, by deed, with full covenants, dated October 15, 1799, by this description of the premises, viz.:

All that certain tract or parcel of land situate at Bloomingdale in the seventh ward of said city of New York, and butted and bounded as follows, to wit: Beginning on the north side of the Bloomingdale road at the corner of the lane leading down to Mr. Striker, and running along the same (the lane leading to Striker); north fifty-eight (58) degrees west ten (10) chains sixty (60) links, and thence by various courses to the Bloomingdale road; thence along the said road north twenty-eight (28) degrees thirty (30) minutes, thirty nine (39) chains and seventy-five (75) links to the place of beginning, containing ten (10) acres ‘ according to a map thereto annexed.’ ”

The grantors included in their grant all the easements, privileges, advantages and appurtenances belonging or in anywise appertaining to the land. The Bloomingdale road was opened as a public highway in 1707, by the public authorities, over the land of Theunis Ides. On March 8, 1868, the commissioners of the Central Park, acting under the authority of an act of the legislature, passed April 24, 1867, filed a map re-laying out a district comprehended within Fifty-ninth and One Hundred and Fifty-fifth streets, the Eighth avenue and the Hudson river. Upon this map Bloomingdale road north of Eighty-sixth street was not retained, and its legal closing as a highway dates from the filing of that map.

By mesne conveyances the tract of land, of which the premises in question formed a portion, came into the possession and ownership of Charles Ward Apthorp, who died intestate in 1797. His heirs made various conveyances of the lands; one of which was to Clarkson. The plaintiff is a descendant .of James Apthorp, one of the children of Charles W. Apthorp, and it is his claim that, by inheritance, he is entitled to and seized in fee of an undivided one-twenty-eighth part of the land formerly within the lines of the Bloomingdale road and lying in front of the premises conveyed to Clarkson. That claim rests upon the ground that that conveyance did not take in the road, and, therefore, when, by its legal closing in 1868, it was relieved of the public easement, it reverted “ in full and unqualified domain” to the heirs of Charles W. Apthorp.

It is argued for the defendants, who have become vested with their rights and titles in the premises through mesne conveyances by successive grantees of the land since the grant to Clarkson by Apthorp’s heirs, that that grant included the Bloomingdale road to its center line; or, if that was not its effect, that, by virtue of the provisions of the act of 1867 for the closing of that road, the defendants acquired the fee of the road to its center; or, if the fee in the soil of the adjoining portion of the road never passed from the original grantors, that their grantee, his heirs and assigns, became vested with private easements in the road for light, air and access, to the purposes of which the ownership of the plaintiff should be declared perpetually subject.

Whatever the individual opinions we might entertain (and they may well differ) respecting the effect of the language in the conveyance to Clarkson to convey to him the fee of the soil to the center line of the Bloomingdale road, we prefer to place our decision upon the broad ground that Clarkson became vested with rights to private easements in the highway, which would perpetually exist as against the grantors and those deriving title from them; although the public easement in the road should become extinguished by its discontinuance as a public highway. There is great difficulty in reconciling the decisions in this state upon the question of when a description in a deed, which bounds the premises upon a highway, or street, shall be deemed to take in the fee to the center line of the roadbed in front of the premises. There is no doubt about the rule being settled that there is a legal presumption against the grantor’s intending to reserve to himself the title to the soil of the highway, and that such presumption is only overcome by language in the conveyance clearly indicating such an intention on his part; but the application of the rule is made uncertain through the varying opinions of courts as to the inference which we shall draw as to intention from the words in which the grant is couched.

Sufficient evidence of that uncertainty of application will be found from reading the opinions since the early case of Jackson v. Hathaway, 15 Johns., 447, down to a very recent date.

In the very elaborate briefs which are submitted the cases have been diligently investigated and collated on both sides, and by reference to them it can be seen that there has been more or less divergence in views with respect to how boundary lines are to be drawn, with respect to monuments in the highway and in streams; as, also, with respect to what shall be deemed descriptive monuments.

In the absence of language which will plainly express the intention of a grantor to exclude from the operation of his grant the soil of the adjacent highway, it is just that doubts should be resolved in favor of his grantee ; but in the application of the principle there may be some danger to the stability of property rules.

In a case apparently governed by precedents slight departures from the descriptive language used in the earlier cases might be seized hold of to prevent what seems an unjust result. In the present case, for instance, there were found grounds for distinguishing the description in the grant from that used in White's Bank v. Nichols, 64 N. Y., 65, and Kings Co. Fire Ins. Co. v. Stevens, 87 id., 287, and in some later cases, and they are pointed out in the briefs of counsel and in the opinions delivered by Mr. Justice Ingraham at the general term in this case, and in that of the same plaintiff against Delano.

The distinction may be justified by the conviction that such a claim as the plaintiff makes is unmeritorious; but there is considerable doubt in our minds whether the case is not within the precedents just cited. However that may be, we think that the question can be effectually set at rest; the appearance of shaking the stability of decisions can be avoided and a property rule established, not only just, but which is logically deducible from legal principles, by holding that, in this and like cases, while the grantor may have retained the fee of the soil in the highway, he has but a naked, or barren title, and that, in the event of the discontinuance of the public highway by act of law, the grantee, and his successors in interest, nevertheless, will still be entitled to the perpetual enjoyment of certain easements, which were impliedly granted, in relation to the open way lying in front of the lands granted, and referred to as their boundary. This view is in accord with authority and with reason. That private easements may be appurtenant to the property abutting upon a public highway must be conceded. These easements of the abutting landowner are in addition to such as he possesses as one of the public, to whose use the property has been subjected. They are independent of the public easement and, whether arising through express or implied grant, are as indestructible, in their nature, by the acts of the public authorities, or of the grantor of the premises, as is the estate which is the subject of the grant.

The case of White's Bank v. Nichols, 64 N. Y., 65, is instructive upon this proposition. That was in ejectment to recover a strip of land which, by construction of a street under the direction of the public authorities, remained between the new and original street lines. The defendant was the owner of the abutting property, and took possession up to the new street line, and the plaintiff, claiming as the owner of the soil of the street, sought to eject him. It was held that, by the original grant of the lot to defendant’s predecessor in the title, its boundary was confined to the exterior line of the street; but that he had the right to an easement, of which he could not be deprived, and which consisted in the right to have the space of ground left open forever as a street, and' to use the way for every purpose that may be usual and reasonable for the accommodation of the granted premises. The-plaintiff’s recovery, therefore, in the action, it will be seen, was & barren one; for, though it obtained a judgment that the fee was in it, the judgment subjected it to the defendant’s easement. In that case the original grant was of premises as shown upon a map of the block, made by the grantors, on which streets were-designated, and while that circumstance entered into the decision, of the question of defendant’s right to an easement, nevertheless it was laid down by Allen, J., as the general rule, that “ when land is granted bounded on a street or highway, there is an implied covenant that there is such a way, that so far as the grantor is concerned it shall be continued, and that the grantee, his heirs and assigns, shall have the benefit of it.” In Parker v. Framingham, 8 Metc., 260, which was cited by Judge Allen in support of his statement of the rule, Chief Justice Shaw, who delivered the-opinion, after stating the settled rule in the language quoted by Judge Allen, continued: “It seems reasonable, and quite within the principle of equity on which this rule is founded, to apply it to tne discontinuance of a highway, so that, if a man should grant land bounding expressly on the side of a highway, if the grantor own the soil under the highway, and the highway, by competent authority, should be discontinued, such grantor could not so use the soil of the highway as to defeat his grantor’s right of wayr or render it substantially less beneficial. Whether this should be deemed to operate as an implied grant or as an implied warranty covenant, and estoppel, binding on the grantor and his heirs,, is immaterial. The right itself would be inferred from that great principle of construction, that every grant and covenant shall be so construed as to secure to the grantee the benefits intended to be conferred by the grant, and that the grantor shall do nothing to defeat or essentially impair his grant”

The question involved in that case related to a claim for damages upon laying out a town way over land formerly embraced within the limits of a turnpike, which had been discontinued; but the statement of the general rule was relevant to the discussion, to show that an easement was secured to the petitioners, as against the grantor and his assigns, over the soil of the turnpike after it was discontinued.

Professor Washburn, in his work on Basements (*170), says, “ upon the authority of Parker v. Framingham, supra, where one sells land bounded upon the highway, and the same is discontinued by act of law, although the same reverts to the owner of the fee of the soil, the grantor, as such, in such a case, would have no right to deprive his grantee of the right to use the discontinued road for the purpose of a way.”

The Bloomingdale road, it must be remembered, was laid out by the authorities as a public highway oyer a tract of land owned by Ides, the predecessor in title of the Apthorps. The effect was to burden their land with an easement of way in favor of the public. As the title to the land in the road remained in them, We think that to bound a parcel of land upon the highway, under conveyances which included all the appurtenant easements and advantages, was to grant' easements in the land embraced in the way in favor of their grantees, to the extent that they might be beneficial to thé estate conveyed. Although the fee of the soil remained in the grantors, it was incumbered with an easement of their own creation. Washburn on Basements (4th ed.), 266. In the text book cited, the proposition is rested upon the authority of the case of the Opening of Eleventh Avenue, 81 N. Y., 436.

The fact in that case was that the owner of the tract made conveyances of portions, bounding them upon intended streets not yet laid out by legal authority, but treating them as located if the map of the public authorities had been extended. The decision of the referee was upheld, as being supported by the authorities, that these conveyances, although not amounting to a dedication of the lands embraced in the supposed streets to the use of the public, or constituting them public highways, created an easement in favor of the grantees of the lots abutting thereon, which, as between them and their grantor, and those deriving title under him, entitled them to have the lands described in the conveyances as streets and avenues left open as such for the benefit of their lots.

Is there any satisfactory reason for making a distinction against, an application of this rule to a case where the conveyance bounds the premises upon an existing public highway, which has been laid out over the lands of the grantor, or of his predecessor in title, and the fee in the soil of which remained in him with reversionary rights ? The argument against it is that to refer to a public highway as a boundary is merely descriptive; but it seems-a sufficient answer to that to say that to bound the grant by the way, the fee of the soil of which is in the grantor, is to warrant its presence and its continuance not as a highway, but as an open way for access or enjoyment, so far as the grantor is concerned, in the absence of words reserving and denying all rights in the-highway.

In De Peyster v. Mali, 92 N.Y., 267, the existence of such an independent private easement of the abutting landowner was distinctly recognized. It is said to be impliedly granted, because necessary for the enjoyment of that which is expressly granted, and upon the principle that where one grants to another, he thereby grants him the means of enjoying it, whether expressed or not. In that principle easements of access and of light and air find their support. 2 Washb. Real Prop., 25, 27.

The easement which the public acquires in the land, upon the-laying out of the highway, is limited to those uses for which highways have ordinarily been understood to be intended; but the abutting landowner, besides his right as one of the public, may acquire a right to private easements, even if he never owned the fee of the soil in the highway. If a use of the street, or highway, for public, or quasi public, purposes, has been authorized, which is extraordinary in its nature, and interferes with a free access, or the free flow of light and air to the abutting owner’s premises,pro tanto, he is deemed to have suffered in the enjoyment of property rights. As to him such a use is illegal and. will be Restrained, until the right to the particular use is acquired by making compensation through agreement, or through condemnation proceedings, under the law of eminent domain. This is the doctrine of the elevated railroad cases, and their litigation well illustrates what rights are possessed by the abutting lot-owner on the public street to the enjoyment of those advantages which the open way in front of his premises confers upon his property. If, by act of law, the public right, or easement in the highway has ceased, there is no reason for saying that, as against the grantor of the ■abutting land, any right to the continuance of private easements has been lost to the grantee. At least, the principal argument for the other view is that the possible discontinuance of the highway was a contingency which the parties must, or should, have considered. But is that quite just? Had the grantee not the right to assume that, with the fee of the highway in the grantor, in ■conveying lands with boundaries given upon the highway, together with all the appurtenances, easements, advantages and privileges, he intended to and did, impliedly, if not in express terms, warrant to his grantee, as far as he was concerned, the continuance of the open space in front of the land for all the beneficial purposes which it could subserve, even if the public easement should cease ? When it is said that the land of a highway which has been discontinued reverts to primary conditions of ownership, obviously, it is to be understood that such owner-ship is not thereby relieved of burdens created by the original ■owner.

At the time of the sale of the land to Clarkson, the open way, "by which the grantor bounded it, existed as the visible incident to the enjoyment of the land; upon what principle may the grant- or, or his successors in interest, when the public highway is discontinued by the action of the public authorities, step in and claim that a right to the exclusive possession and dominion of the land embraced in the highway had reverted ? The appurtenances in such a grant, which relate to the highway and its uses, are not limited to those which appertain to the general public. That would hardly be contended for. Why then, the way having ceased to be a public one, should a reversion of ownership, by operation of law, be deemed to free it from a private easement appurtenant to the abutting land ? In the sale of a parcel of land, which is described as bordering upon a highway, we may presume that its existence entered as a factor into the consideration for the purchase, as offering certain advantages; such as would include a free flow of light and air over it, as well as in the freedom ■of access. Though such private easements have been said to result from implied covenants, in legal effect the covenant operates as a grant, which warrants, as against the grantor, his heirs and assigns, their perpetual enjoyment by the grantee and his successors in interest. The highway, as such, may be discontinued, but so far as the grantor and his successors in interest are concerned, they shall not derogate from the original grant and, by resuming possession of the soil, prevent the enjoyment by the abutter of his private easement.

As is suggested by the counsel for the respondents, as to the .grantee, it is only upon the cessation of the public right in the road that the practical enjoyment of the private easement as such begins. If the fee in the land upon which the highway exists has remained in the grantor, its usefulness, if any, to him must be confined to subsoil properties and uses, which do not interfere with the full enjoyment of the private easements over the land.

It is the better rule to hold that, to exclude a grantee from the perpetual beneficial use of the open way in front of the premises granted to him, the language of the deed should clearly express such an intention. Mr. Justice Story, in United States v. Appleton, 1 Sumner, 492-502, observed that “in truth every grant of a thing naturally and necessarily imports a grant of it as it actually exists, unless the contrary is provided for.”

It was said by Strong, J. in Huttemeier v. Albro, 18 N. Y., 48, that whether a right of way, or- other easement, is embraced in .a deed, is always a question of construction of the deed, having reference to its terms and the practical incidents belonging to the grantor of the land at the.time of the conveyance. In that case, in the deed of a-lot, a boundary was “ south-easterly along said alleyway,” and that reference to the alley was considered as a circumstance indicative of an intention that the way should continue and that the easement was conveyed to the grantee as an ■appurtenance.

Some cases are referred to by the counsel for the appellant as "being opposed to the view expressed. In Wheeler v. Clark, 58 N. Y., 267, the question involved was, whether a clause contained in a certain deed .of lots, upon a map of the grantor’s lands, which subjected the land forming the streets in front of the lots to the use of all the owners of the lots upon the map, and of the public generally, as public streets, could be construed as perpetually reserving a private right of way over the land of the highway, and the decision was that no private right of way was created which plaintiff, as the owner of one lot, could enforce as against the defendant, who was the owner of other lots, and whose title (like that of the other lotowners), upon the discontinuance of the public highway, under his grant, carried him to the centre of the highway.

The question now before us is quite other than in Wheeler v. Clark, or in Kings Co. Ins. Co. v. Stevens, 101 N. Y., 411. In the latter case the defendant, under implied covenant, claimed to .have a right of way over a road which had been closed by the -public authorities, and plaintiff’s action was to restrain her from ■entering upon the strip of land in front of its premises. The question did not relate to the rights of the abutter in the road in front -of her premises; but to a distant way. Finch, J., observed, in his opinion, that “ the closing of the street in controversy is in "front of the plaintiff's premises and not of her’s (the defendant’s) .and does not take from her light, air or convenience of access.”

In King v. The Mayor, 102 N. Y., 175, the dispute was with, respect to the right to an award of damages for closing Bloomingdale road as a public highway. After the road was legally closed, by the filing of the map in 1868, but before the making of the award of damages, the owners of the land fronting upon the road conveyed to Brennan, by a description which bounded the grant, by the Bloomingdale road and which included the right, etc., of the grantors in that road and in other streets as were adjacent to the premises described. The decision was to the effect that the representatives of the Kings, who were the grantors, and not Brennan, were entitled to the award ; upon the ground that the right to the damages vested at the time of the filing of the map, which legally closed the Bloomingdale road, and that the deed to-Brennan had not transferred to him the personal claim to the damages. The remarks of Judge Finch, cited by appellant’s counsel, must be read in view of the proposition decided. He held that. Brennan was bound to know, when the grant was made to him, that the public highway no longer existed and that he must be-presumed to have bought in view of that fact. With such knowledge, chargeable to Brennan, he could not be heard to claim that, by bounding the grant upon the highway, his grantors had conveyed any easement in the highway. And see Utter v. Richmond, 112 N. Y., 610 ; 21 St. Rep., 818.

These cases, which the appellant’s counsel have cited from the-reports in this court, are the only ones we need discuss. In Fearing v. Irwin, 55 N. Y., 490, also cited, the question was as to-when the Bloomingdale road was closed, and the decision related to the constitutionality of the legislative acts and their effect. In other respects, it rested upon a formal admission of record. It is-not in point here. The very early case of Jackson v. Hathaway, 15 Johns., 447, cannot be regarded as an authority upon the question now under discussion; for the reason that we are not sufficiently informed as to the terms of the conveyance of the land. Nor should we consider ourselves bound by that case, which concerned the ownership of the fee in the highway as affected by a conveyance of adjoining land, in the decision of this case. As a precedent in the consideration of the question of when the fee of the land in the road passes to a-grantee of premises upon it, under the-terms of a description, we are not disposed to dispute its authority; but, we think, it should not be extended.

The appellant further contends that these special easements, if acquired by the abutting owner, were lawfully extinguished and condemned, as the result of the proceedings had under the act of 1867, providing for the closing of the Bloomingdale road. In that he is mistaken. The purpose and the effect of that act, it is plain from its language, were to discontinue the road as a public highway and, in so doing, to extinguish the public easement The legislature was not concerned with private easements and rights in the land covered by the public highway. Its action left these private interests as they were; the public had no interest in their destruction. The award of damages was to compensate property owners who could prove they had been injured by the discontinuanee of a public highway. It is obvious that the presence of a public highway in front of one’s premises, by reason of the many public and general advantages it offers, confers a distinct value upon them and that its proposed discontinuance may result in a •diminished value to the owner. The situs of a parcel of land •enters into the estimate of its value. If upon a public and prominent thoroughfare, it .has a value which it would not possess if the thoroughfare were closed or changed. How great the loss in value is, or if any is in fact sustained, may turn upon a consideration of the circumstances surrounding the proposed alteration; but the legislature, in providing for awards of damages, looks at the general fact of a change being made which may affect injuriously landowners, and authorizes compensation in such cases.

The result of our consideration of this plaintiff’s demand for the possession of the premises described, of the basis for such a claim and of -the intention to be deduced from the original deed of Apthorp’s heirs, from its terms and the circumstances of its making, is, that we hold that though the fee of the soil of the road may not have been transferred to the grantee by the conveyance and may have remained in the grantors and those deriving title from them, yet, in bounding the granted premises upon the Bloomingdale road and by including the easements and appurtenances thereto belonging, the grantors impliedly warranted to the grantee that so much of the road should perpetually exist as an open way as bordered upon the premises granted, and, in legal effect, granted such usual and more or less necessary easements as would be comprehended in the free flow of light and air over and in the free use of the open way as such, pro tanto, and' which survived the ■extinguishment of the public easement in the highway by act of law. To those easements the fee in the land embraced in the highway remained perpetually subject. That the ownership of the fee may be barren of profit has nothing to do with the question. In the original sale the owner received, presumably, a value proportioned to the fact that the land sold was upon the Bloomingdale road, which gave to it access and other advantages. To permit the successors in interest of the original grantor, in the face of the grant, to resume dominion over and to have the beneficial use of the land in the old highway would be unjust, as well as without sufficient warrant in the law.

It follows from the views we entertain upon the questions discussed that, while the plaintiff was entitled to maintain the action and to have judgment adjudging him entitled to recover, the fee of the land in dispute, it was error to award judgment for the unqualified possession of the land. He was not entitled to such a judgment against the defendants, but only to a judgment for the possession, subject perpetually to the defendants’ right to the enjoyment of their easement in and over the land.

For the reasons stated, the order appealed from should be affirmed and, under the stipulation of the appellant, judgment absolute should be ordered against him, with costs.

Maynard, J.

I am in favor of affirmance in the Southmayd case, and in Delano No. 1, because the defendant is the owner of the fee of the land to the center of the Bloomingdale road, upon which his premise's are bounded. Unless there is something in the description of the property conveyed, or its location or relation to other property of the grantor, indicative of a contrary intent, a grant of land bounded upon a public street or highway of which the grantor has the fee must be deemed to convey the fee to the center of the street or highway.

The same rule of construction should be applied where the boundary is along the street or highway and the intersecting lines are described as running to the street or highway. But if it must be conceded that the grant does not convey the fee of the street, I concur in the opinion of Gray, J.

Orders affirmed and judgment accordingly.

Andrews, Oh. J., and Peckham, J., concur with Gray, J.; Earl, Finch and O’Brien, JJ., dissent.


author: Gray, J.

text:
    James W. Holloway, App’lt, v. Franklin H. Delano et al., Resp’ts.

      (Court of Appeals,

      Filed October 10, 1893.)

    Appeal from judgment of the supreme court, general term, first department, reversing judgment for plaintiff, entered upon verdict in an action of ejectment.

      James A. Deering, for app’lt; Wm. G. Choate, for resp’ts.

       Affirming 45 St. Rep., 886.

   Gray, J.

In this action, the claim of the plaintiff to recover the possession of land formerly embraced in the Bloomingdale road, and between Ninetieth and Ninety-first streets, in the city of New York, depends upon the construction to be given to the descriptive words in two grants of land; one made by Charles Apthorp and others to John Shaw, and the other made by the same grantors to William and Mary Jauncey, in 1799.

In the deed to Shaw, they were the following, viz.: “ Beginning at the corner of William Constable’s land on the north side of the Bloomingdale road, and running thence along said road thirty-eight degrees east, eight chains forty-five links; thence along the south side of a private road in the map hereunto annexed delineated, and forty links wide, and north fifty-two degrees-west, twenty-two chains ten links, crossing the said private road to the North river; thence southwesterly along the side of the said river to the said William Constable’s boundary line, and thence along said boundary line south fifty-three degrees east, twenty-four chains fifty links, to the place of beginning, containing nineteen acres, three roods and five perches, according to a map hereunto annexed and made by Benjamin Taylor.”

In the deed to the Jaunceys, they are as follows, viz.:

“Beginning at the corner of a field at the junction of the Bloomingdale road with the crossroad that leads to Harlem; thence running along the Bloomingdale road south thirty-five degrees west, seven chains fifty links; thence south thirty-seven degrees west, ten chains and thirty-two links, thence south fifty-four degrees' east, along William Constable’s and Richard L. Brown’s land, nineteen chains eighteen links; thence north fifty-four degrees east, nine chains fifty-five links ; thence south fifty-three degrees east, three chains seventeen links'; thence north thirty-six degrees east, eight chains ninety-two links; thence north fifty-three degrees west, thirty-six chains, to the beginning, containing forty-two acres and five perches, according to a map thereof made by Benjamin Taylor, one of the city surveyors of the said city of Hew York, and hereunto annexed.”

The general term were of the opinion that no doubt existed in this case, whatever it may have been in Holloway v. Southmayd; but that, by the description, the grantees took the fee of the Bloomingdale road to its center line. While we concede that, under these descriptions, the doubt, as to what was the intention of the grantors to convey, might be more readily resolved in favor of the grantees; nevertheless, we prefer to place our affirmance of the general term’s judgment upon the grounds stated in the opinion in Holloway v. Southmayd, decided herewith.

In either case, we are inclined to the view that the descriptive monuments, or starting points, for the boundary lines cannot be fixed in the center of the Bloomingdale road, without straining-too much the language used. In Shaw’s deed “ the corner of Constable’s land on the north side of the Bloomingdale roadn seems to indicate the side of the road. If we read “ on the north side,” etc., as referring to the general situs of Constable’s land, we should have to assume that Constable owned to the center of the road; which the proofs do not warrant us in doing. . While, if we read these words as referring to the “ corner,” then, of course, we should have the same condition of things as in the Southmayd case. So, in the Jaunceys’ deed, “ the corner of the field at the junction of the Bloomingdale road,” etc., are words which, when read according to their natural import, seem to describe the situs of the field and fix the starting point for the boundary line in the exterior line or side of the road bounding the field and not within the road itself.

For the reasons expressed in the case of this same plaintiff against Southmayd and others, the order appealed from should be affirmed and, under the stipulation, judgment absolute should be ordered against the appellant, with costs.

Order affirmed and judgment accordingly.

All concur; Maynard, J., for reasons stated in memoranda in Southmayd case; except Earl, Finch and O’Brien, JJ., dissenting.


text:
    James W. Holloway, App’lt, v. Franklin H. Delano et al., Resp’ts.

      (Court of Appeals,

      Filed October 10, 1893.)

      Appeal from judgment of the supreme court, general term, first department, reversing judgment in favor of plaintiff, entered on verdict in an action of ejectment.

      James A. Deering, for app’lt; Wm. G. Choate, for resp’ts.

       Affirming 45 St. Rep., 891.

   Gray, J.

In this case the claim of the plaintiff to recover the possession of land formerly embraced in the Bloomingdale road, and between Ninety-second and Ninety-third streets, in the city of New York, depends upon the construction to be given to the descriptive words in two grants of land; one made by Charles Apthorp and others to Oliver Vanderbilt, in 1799, and the other made by the same grantors to William and Mary Jauncey in 1800.

In the deed to Vanderbilt the description is as follows, viz.: Beginning at a corner on the westerly side of the Bloomingdale road at the northern side of the private road leading to Hudson’s river, and running thence along the west side of Bloomingdale road aforesaid north thirty-five degrees east, three chains sixty links; thence along the same north thirty-two degrees east, five chains forty-two links, to a lane on the south side of Mr. Clarkson’s land; thence north thirty-five degrees west, twenty-three chains forty links, to the Hudson’s river; thence southwesterly along the said course eight chains fifty links to the land sold to Mr. Shaw; thence south fifty-three degrees east, one chain thirty links, to the private road leading to the Hudson’s river; thence along the same north thirty-five degrees east, forty links, being the width of said road; thence south fifty-three degrees east, twenty chains seventy-three links, to the place of beginning, containing nineteen acres, one rood, fifteen poles, according to a map annexed.”

In the Jaunceys’ deed, the description is as follows, viz.: ■“ Beginning at the corner of a field at the junction of the Bloomingdale road with a cross-road that leads to Harlem, thence running along the Bloomingdale road south thirty-five degrees west, seven chains fifty links; thence south thirty-seven degrees west, ten chains thirty-two links; thence south fifty-four degrees east, along William Constable’s and Robert L. Bowne’s land, nineteen chains eighteen links ; thence north fifty-four degrees east, nine chains fifty-five links ; thence south fifty-three degrees east, three chains seventeen links; thence north thirty-six degrees east, eight chains . ninety-two links ; thence north fifty-three degrees west, twenty-six chains, to the beginning, containing forty-two acres and five perches, according to a map made by Benjamin Taylor, one of the city surveyors of the city and county of New York, and hereto annexed, and also,” etc.

Unquestionably, in the Vanderbilt deed the terms of the description are sufficiently explicit to exclude the roadbed from the grant. As to the Jaunceys’ deed, what we have said in Holloway v. Delano, Action No. 1, applies here; inasmuch as the starting point is similarly described.

Bor the reasons expressed in the case of this same plaintiff against Southmayd and others, the order appealed from should be affirmed, and, under the stipulation, judgment absolute should be ordered against the appellant, with costs.

Order affirmed, and judgment accordingly.

All concur, 'except Earl, Finch and O’Brien, JJ., dissenting.