Jackson ex dem. Putnam and others, against Bowen

Jackson ex dem. Putnam and others, against Bowen. Parol testimony cannot be received to show that a deed, stating a course for 36 chains, was intended to express 29. An adverse pedis possessio for 20 years and upwards, with a claim of title in other lands, in right of that pedis possessio, which lands are part of the lot on which the pedis possessio is taken, is a bar to a recovery in ejectment. Ejectment for lands situated in Johnstown, in the county of Montgomery, tried there at the last circuit, before Mr. Justice Thompson. The lessors of the plaintiff, and the defendant also, derived their titles under the will of Victor Putnam, their grandfather. He had devised in severalty, 100 acres of undivided land to each of his children, and the overplus to he divided among his four sons. Johannes, the father of the lessors of the plaintiff was one of the children, and Mary Bowen, the mother of the defendant was another. By a deed of partition, reciting the will, the 100 acres devised to Mary were set out, and the residue of the patent apportioned among the four sons. The north and south lines of Mary and Johannes were the same; the dispute was respecting the east and west ^boundaries. If the lines and courses were [*359] run according to the deed of partition, the lands in controversy would fall within the limits of the plaintiff’s division, but Mary Bowen would not then have her 100 acres. If, on the other hand, the acknowledgments of the ancestor of the lessors and themselves, together with a claim of right, hut not apedispossessio of the whole, were to prevail, the defendant would be entitled. On the trial, it was attempted to prove, by paroi testimony, that the partition deed, in giving a north course on the east side of the lot of the lessors, for 36 chains from the southern line, was a mistake, and that it ought to have been extended only 29 chains; in which case, by running the line west to the common norlh and south boundary, the right of the defendant would be established, in conformity to the several quantities of land, the will and paitition deed purported to be the right of the various claimants under them, and also in strict coincidence with known landmarks. The judge, however, overruled the testimony, as contradictory, and not explaining the deed. Upon this, and the testimony adduced, which is set forth, the jury found for the plaintiff. A motion was now made to set aside the verdict, as contrary to evidence and law, and also on account of the misdirection of the judge to grant a new trial. Cady, for the defendant, to show the mistake in'the partition deed, ingeniously located the 100 acres devised" to Mary Bowen, and the quantity to which the lessors of- the plaintiff would, under that, and the will of Victor Putnam, be entitled; and this could not be done, but by running the north and south lines on the eastern boundary of the plaintiff, 29 instead of 36 chains, he contended that the deed was felo de se, unless so explained. He contended also, that the action was not maintainable, as there had been an adverse claim of the whole lot, accompanied with an actual possession of part, in right of the title to the whole, and adverse to all others. *Fara Veckten, contra, insisted on the admissibility of the paroi evidence to do away the words of the deed, and that a purchase might be presumed of any extra quantity. He strongly urged the impropriety and danger of extending the effect of adverse possession beyond the land actually enclosed. There is not any rule more universally acknowledged than that by which it is laid down, that paroi evidence shall not be given to control or to contradict, to enlarge or to abridge, any instrument in writing, though it may be adduced to explain; and there is-scarcely any which, in its application, has created more discussion. On the first branch of the rule it has been decided, that where an ambiguity is patent, arising on the face of the writing, that is, from the very words made use of, paroi testimony shall bo excluded; as whether “lie or they" shall refer to the next antecedent only, or to all preceding; (Cheney's Case, 5 Rep. 68;) or the word “woods,” in a particular of an estate, cover “underwoods.” Jenkinson v, Pepys, 6 Ves. jun. 330. So where the testimony would go to destroy the conclusion of law on a will or deed; as on a devise or deed void in law for uncertainty, to show who or What was meant; (Cheney's Case, ubi sup.;) or that another person than the one named was intended, when there is a person of the name mentioned; (Delmare v. Robello, 1 Ves. jun. 412;) or that au agreement for a lease which did not mention any term, meant, from an advertisement to which it did not refer, a lease for lives. Clinan v. Cooke, 1 Sch. & Lef. 22. So if it be to destroy the legal operation or construction of a deed or other instrument; as that by “heirs” was meant “heirs of the body;” (Altham’s Case, 8 Rep. 155;) or that a note having no time of payment expressed, was not payable immediately; (Thompson v. Ketcham, 8 Johns. Rep. 189;) or when, without a place of payment, that ic is payable in another place than that from whence dated; (lb. ibid, overruling, in this respect, the same case, 4 Johns. Rep. 285;) or from the declarations of a testator, that a will was made by duress; (Jackson v. Kniffen, 2 Johns. Rep. 31;) or to give, from usage, a construction to, or explanation of¡ the language of a grant or deed not ambiguous or equivocal. Cortelyou v. Van Brandt, 2 Johns. Rep. 357. Under the second branch of the rule it has been determined, that paroi evidence cannot be admitted to show that particular lands, embraced by a written contract /or a lease, were agreed to be accepted out of the lease; (Lawson v. Lauda, 1 Dick. 346; Fell v. Chamberlain, 2 Dick. 484;) or that an annuity not redeemable by the grant, was agreed to be so; (Hare v. Sherwood, 1 Ves. jun. 24;) or that an absolute bond was given as an indemnity; (Mease v. Mease, Cowp. 47;) or that there is a mistake in a writ or written instrument; (Fitzhugh v. Runyon, 8 Johns. Rep. 375;) or that an auctioneer had sold, subject too charge, when his printed conditions were, “free of all incumbrances." Gunnis v. Erhart, 1 H. Bl. 289. Under the third branch it has been held, that paroi testimony is inadmissible to prove that a bond given to secure a sum in trust for a wife, was intended to be in bar of dower; (Tinney v. Tinney, 3 Atk. 8;) or from conversations before and at the time of signing an agreement for a lease, at a certain sum, that it was to be clear of taxes; (Rich v. Jackson, 4 Bro. Ch. Cas. 513;) or to supply, even in equity, any defect in an agreement under the statute of frauds; (Binsted v. Coleman, Bunb. 65;) or to prove that a ground rent is to be paid by a tenant, in addition to the sum mentioned as the rent in his lease; (Preston v. Merceau, 2 BL 1248;) or to show that an agreement in writing to exchange a copper-mill-for the grass of Whiteaere, was intended to give that of Blaelracre also; (Meers v. Ansell, 3 Wils. 215;) or (when there are circumstances of fraud) that besides the money consideration expressed in a deed, there wore others of name and blood; (Clarkson v. Hanway, 2 P. Wms. 258;) or in addition to a valuable as well as good consideration of love and affection, there was a further consideration; (Schermerhorn v. Vaderheyden, 1 Johns. Rep. 159;) or from circumstances, that the sum expressed in a receipt of 25 years old, was for continental money, and, therefore, amounted to less than the value stated; (Roberts and others v. Garnie, 3 Caines' Rep. 14;) or to add anything to an agreement respecting lands, because contrary to both the common and statute law. Patericke v. Powlet, 2 Atk. 383. Under the fourth branch, see Vandervoort v. Col. Ins. Co., 2 Caines’ Rep. 165. As to the admissibility of paroi testimony, it has been ruled that it may be resorted to when to explain a latent ambiguity, or one which does not appear on the face of the instrument, but arises from circumstances extrinsic, and yet upholds the writing, as to show who is meant under a devise by the testator to his son John, when he bad two of that name, and thought the elder dead; (Cheney’s Case, 5 Rep. 68; Couden v. Clerk, Hob. 32;) so where the bequest is of a trunk, and the testator has left three; (Pendleton v. Grant, 2 Vern. 511,) so as to ascertain the real person intended, though misnamed, there being no other to answer the description; (Hodgson and Caldicott v. Hodgson and Fitch, 2 Vern. 598;) or that the person intended woe called by the testator as named, there being no other living of that name; (Beaumont v. Fell, 2 P. Wms. 141; Parsons v. Parsons, 1 Ves. jun. 266;) for in all these cases the evidence coincides with, and supports, the instrument, therefore paroi testimony may be adduced to explain a contract according to the legal operation of the deed, though in abridgment of its general terms; (Schuyler v. Ross, 2 Caines’ Rep. 202;) or to show what freight was agreed on, where a charter-party expresses none; (Foot v. Salway, 2 Ch. Cas. 142 ;) or to prove a collateral fact which explains the nature of an equivocal instrument; as that an apprentice fee was given, and, therefore, the deed intended to be' "articles of apprenticeship, though the word “ apprentice” waa not'Used, and it might "otherwise have stood as a contract for hire; (The King v. Laindon, 3 D. & E. 379;) or that provisions stated, in a written receipt, to • have been received “for account of the plaintiff,” from the master of a vessel, were received to sell" on commission, and not as a purchase; (M'lnstry v. Pearsall, 3 Johns Rep. 319 ;) or that goods mentioned in a bill of parcels to have-been bought of I. & D. were not-their joint property, but part the sole property of D. and the residue the sole property of 1, -who had authority to sell the part of D.; (Harris v. Johnston, 3 Cranch, 311;) or to show the extension of time for performing a written contract not under seal; (and as it is presumed not then broken, Keating v. Price, 1 Johns. Cases, 22,) or whether an advance of 5 per cent, agreed in writing to "be paid on so many shares of bank stock, was an advance on the amount of the shares, or on the sum paid in on them; (Cole v. Wendell, 8 Johns. Rep. 116;) or that the money consideration in a deed was greater than that expressed; (The King v. Scammondon, 3 D. & E. 474;) or, as it is there said, that there were other considerations. In cases of fraud, paroi testimony is always received; ns to show that the natural love and affection stated as a further consideration, was no part of it; (Filmer v. Gott, 7 Bro. Par. Cas. 70;) or that a will was executed under duress. Jackson v. Kniffen, 2 Johns. Rep. 31. See further on this subject in the index of Sugden’s Law of Vendors, tit. “ Parol Evidence.” Rash-field v. Careless, 2 P. Wms. 158, and the cases in the note there, by Mr. Coxe. A possession, when relied on as a bar, must be adverse to the title which is claimed; therefore, when taken during a particular estate, it will not run against those in remainder. Jackson v. Schoonmaker, 4 Johns. Rep. 390. On the same principle, where the court of chancery settles the rights of claimants to land by directing a partition, an adverse possession, as among themselves, can begin only from the time of the decree. Jackson v. Bradt, 2 Caines’ Rep. 169. To constitute an adverse possession, it must be adverse at the time of its commencement, and so continue for 20 years without interruption; (Bradt v. Ogden, 1 Johns. Rep. 156;) consequently no possession of another can be set up by a person coming in under him, which he, under whom such person comes in, could not himself set up; (Jackson v. Harder, 4 Johns. Rep. 202 ;) it follows, therefore, that as a squatter comes in under the title of the true owner, no person, deriving his possession from a squatter, can set it up as adverse to the rightful proprietor. Where the deeds upon which a defence in ejectment is rested, prove void, and the defendant has recourse to adverse possession alone, lie must show it by a real, substantial enclosure, an actual occupancy, a pedis possessio, which is definite, positive and notorious. A mere possession fence is not enough. Jackson v. Schoomnaker, 2 Johns. Rep. 230. Observe the distinction where the possession is by claim under a deed conveying a right, (as in the text,) and under which possession is taken. An adverse possession of above 40 years, according to an acknowledged but erroneous line, is a completo bar; (Jackson v. Dysling, 2 Caines’ Rep. 198:) so if according to an erroneous survey and partition thereon. Jackson v. Hasbrouck, 3 Johns. Rep. 331, A possession of 25 years, with color of title, though by the maps and deeds it be according to an erroneous line, gives a complete title against all the world; (Stuyvesant v. Tompkins & Dunham, 9 Johns. Rep. 61;) even against a defendant who has recovered by default in a former suit, the same premises from the plaintiff, though both parties derive title under the same deed, and a recent survey show the location incorrect; (Jackson v. Dieffendorff & Zoller, 3 Johns. Rep. 269;) for alter a possession of above 25 years, (the case is 40,) according to a map and survey, the correctness of the locations cannot be disputed by the parties, or those claiming under them ; (Jackson v. Vedder, 3 Johns. Rep. 8;) but a possession of 8 years, though according to a line designated by the lessor of the plaintiff, is no bar against a correct location made 40 years antecedently Jackson v. Douglas, 8 Johns. Rep. 367. [MAJORITY — Thompson, J.,] Thompson, J., delivered the opinion of the court. An application is made for a new trial, on two grounds. 1st. That the verdict was against evidence; and, 2d. That the court improperly precluded the defendant from showing that there was a mistake in the partition deed, under which the parties respectively claimed, by which the lessors of the plaintiff had more land than was intended to have been conveyed. From the testimony, as stated in the case, it appears that Johannes Putnam, the father of the lessors of the plaintiff, and Mary Bowen, the mother of the defendant, were brother and sister, and children to Victor Putnam, under whose will, bearing date the 5th of July, 1755, they derived title. That on the 19th day of September, 1765, the children of Victor Putnam executed a partition deed, whereby lot ISTo. 1 was conveyed to Johannes Putnam, father to the lessors of the plaintiff, and lot No. 8 to Mary Bowen, mother to the defendant; and the question between the parties is, where is the line of division between the two lots ? The plaintiff having made out a title to lot No. 1, and the defendant to lot No. 8, James Lansing, a surveyor, and witness on the part of .the plaintiff, testified that he had run the western and northern lines of lot No. 1, according to the partition deed: and that some of the premises in question, according to such survey, were included in that lot. Jacob Bees, a witness on the part of the defendant, swore he was 55 years old, and that as long ago as he could remember, Mary Bowen was in possession of the land now held by the defendant, and that she died in posses-[*361] sion; *she had some land enclosed in fence down as far south as the road; she used to live 4 or 500 paces south of the road, but that just before the war. she moved down close to the north side of the highway. That about 14 or 15 years ago, Johannes Putnam showed him his west line, and told him he began at the Mohawk river, and ran northerly nearly to the highway, to a pine tree, and that the land north of that was his sister’s, Mary Bowen. That when Johannes showed him this line, Mary was in possession of the land north of the road. That about seven or eight years ago, Francis I. Putnam put up a stone near the pine tree shown him by Johannes, and said that was hia corner, and that at this time the defendant was in possession of most of the land on the north side of the road, which he now holds. That the whole of the land now held by the defendant was not cleared or in fence, at the time of Mary Bowen’s death. Jacob Hall, another witness on the part of the defendant, swore that about 36 years ago, Johannes Putnam told him his land went no further north than the road, and that Mary Bowen owned the land north of the road. That at this time, or shortly after, Mary Bowen lived near the road; she had before lived farther north. Johannes Putnam called * the witness particularly to show him where his line was. It appeared also, by the testimony of Abraham Conyne, that about ten years ago he applied to Francis I. Putnam, to rent him part of a house jthat stood near the road, on the north side; that the said Francis declined hiring it to him, but referred him to the defendant, of whom the witness leased the house for one year; the witness understood that Putnam did not claim north of the road. Lewis Clement also testified, that about seven or eight years ago, he assisted Francis. I. Putnam in making a fence between these lots on the south side of the road ; that the defendant.came to them and inquired of Putnam if he was making the fence on the line, to which he answered that he was, as it had been shown by Jacob Rees and the defendant. It appeared also that Mary Brown died about 15 years ago.' *On the part of the plaintiff it appeared, that [*362] part of the premises in question, adjoining the road, were unimproved at the expiration of the war. It also appeared that about six or seven years ago, the lessors of the plaintiff claimed the premises, by threatening to dispossess one Peter Lawrence, who afterwards took a lease under them. But Lawrence had the possession from Jacob Rees, who held under Abraham Conyne, who, it appears, had hired it from the defendant. The partition deed between the ancestors of the parties bears date in the year 1765, wherein lot Ho. 1 claimed by the lessors of the plaintiff, is described as beginning at the Mohawk river, and running a northerly course 36 chains, describing no monument at the termination of this line. It appears from the testimony of the surveyor, that to extend this line northerly the number of chains given in the deed, and then pursue the other given courses, would include part of the premises in question. But the testimony on the part of the defendant appears to me to be strong and irresistible with respect to the actual possession for a long series of years; and that, in fact, no possession was ever had of the premises by the lessors of the plaintiff, or their father, under that deed. And that, admitting the deed to cover the land, still the plaintiffs, and those under whom they claim, have abandoned it for such a length of time as to preclude them from a recovery, at least ^n this form of action. It is true a man may be mistaken with respect to his title, and, perhaps, ought not to be concluded by his confession, if made under circumstances inducing a suspicion of imposition or ignorance, neither of which appears in this circumstance, and when acquiesced in for the length of time, as in -the present case, he ought to be concluded. It appears that the premises lay north of, and adjoining to, the highway, which is the division line between the parties, according to their present possessions: the lands of the plaintiff laying to the south, and those of the defendant to the north of this road. Two witnesses on the part of the defendant testify, that as much as 36 years ago, which must have been very shortly after the partition, Mary Bowen was [*363] in the possession *of the premises, the possession of Johannes Putnam going no further north than the highway; and it appears by the testimony of one witness, that as far back as the period above mentioned, Johannes Putnam showed him the line between him and his sister Mary, and declared to him that his land went no farther north than to the road; that the land north of the road was his sister Mary’s. The same declaration was made to another witness about 14 or 15 years ago, and since the .death of Johannes Putnam, the lessors of the plaintiff have repeatedly recognized the same line, both by their declarations and acts,-and never showed any dissatisfaction until about six or seven years ago. Thus it is clear and conclusive, from the testimony, that the defendant and Mary Bowen, his mother, under whom he claims, have been in possession of the premises for at least 36 years, claiming them and using them as their own, adversely to any other claim, and with such repeated recognitions by the lessors of the plaintiff and their father, of the right of Mary Bowen, as to show conclusively that they disclaimed having any right or title to the premises, which is sufficient to. rebut every presumption that Mary Bowen held under them. The premises being held under such circumstances, for such a length of time, is, we think, sufficient to protect the possession against this action. We are of opinion, therefore, that the verdict is against evidence, and that a new trial ought to be granted. Being in favor of a new trial, it would be unnecessary to give an opinion on the other question, did the court entertain the least doubt on the subject. The plaintiff’s deed gives 36 chains on the first line; the defendant contended it ought only to have been 29 chains, and the testimony offered and overruled, was to prove that fact: this was not .to explain any ambiguity, but was directly contradictory to the deed, and manifestly inadmissible. See Cameron v. Irwin, 5 Hill, 272; Clark v. Wethey, 19 Wend: 320* Fuller v. Acker, 1 Hill, 473; Jackson v. Hart, 12 J. R. 77; Jackson v. Cray, 1? Id. 427; Fitzburgh v. Rumyon, 8 J. R. 375; Jackson v Britton., 4 Wend. 507