Jackson, on the demise of Le Roy and others, against Sternbergh

Jackson, on the demise of Le Roy and others, against Sternbergh. Though there has been evidence on both sides, a new trial will be granted, if it appear that justice has not been done. This was an action of ejectment, brought for the recovery of lands situated in Scoharie, in a patent [163] granted *to Myndert Schuyler and others,' tried at the Scoharie circuit, on the 30th of May, 1802, before Mr. Justice Thompson. On the trial it was admitted by both parties, that the title to the premises in question was once vested in Rip Van ¡Óam; and that it was included within the equal one seventh part of the said patent, which fell to the share of Van Dam, who was one of the patentees. Also that the title of Van Dam to the whole of the equal and undivided one seventh part of the said patent, which included the premises in question, was legally conveyed by him to Johannes Schaeffer, Henrick Schaeffer, Teunis Swart, and Henrick Van Valkenbergh. The plaintiffs gave in evidence a deed from them to Jonas Le Roy, .-dated January, 1780-31, releasing “ all the one full and equal seventh part of all the undivided lands between Scoharie river and the hills, from Fox’s creek to a place where two rivulets or runs of water come in one, and fall ,or run in Scoharie river, by north of Garlickt Town.” After this, was adduced the will of Jonas Le Roy, made in January, 1749-50, by which he devised the one half of the lands owned- by him in Scoharie, to Levinus Le Roy, and the .other half to David Le Roy, after the death of Maria, his wife. It was then proved that David died, leaving an only son, named William, one of the lessors of the plaintiff, in behalf of whom, Adam B. Vroman further testified that, about fourteen years since, the defendant himself showed the corners of the lot called No. 156, and its boundaries, 'which included the premises in question, and said it was Le Roy’s lot. That one of the lessors, Levinus Le Roy, about- the same time, requested the witness to take charge of this lot, and see that there was no waste of timber. That it had always been called Le Roy’s lot. That it had never been cleared or fenced till about four or five years since. Peter Becker deposed, that Le Roy’s lot lay north of Fox’s creek, and south of Crab’s hill, between the hills and Scoharie creek, but he did not know whether lot No. 156, *lay on the hills or not. It was proved [*164] by three witnesses that the defendant had sworn, before a magistrate, on a certain occasion, that he had been in possession of the premises eight or nine years, that he held the west end of the lot under one Henry Lawyer, and the east end he claimed in his own right, amounting to about fifteen or nineteen acres, and also that the defendant said it had once been Le Roy’s lot. Thomas Machín, a surveyor, swore, that in June, 1801, he surveyed lot 156, at the request of one of the lessors, and that, according to his survey, the premises were included in that lot. On the part of the defendant it was contended, that the premises in question lay on the hills, and were not included in the boundaries above mentioned, to prove which several witnesses were examined. Nicholas Sternbergh swore he was seventy-nine years old, and was brought up near the premises; that forty or fifty years ago Jonas Le Boy, under whom the lessors of the plaintiff derived their title, showed him the bounds of the land above described ; that he, the witness, was well acquainted with the premises in dispute, and knew they do not lay within those bounds, and Jonas Le Boy had told the witness, that his (Le Boy’s) deed did not cover the premises; that he was easterly to the hills only. Peter Mann, a surveyor, deposed that he run out lot 156. and the premises were not included in it. Nicholas Sternbergh and David Sternbergh deposed, that they were acquainted with the premises in question, and that they are situated upon what are commonly called the hills, and are not included in the bounds of Jonas Le Boy’s deed. One witness swore that the defendant had from time to time, for forty or fifty years past, cut wood for fire and fences on the premises; and another witness testified that the defendant had cleared and cultivated the premises for' about twenty years last past. On this evidence the jury found for the plaintiff. Tiffany moved to set aside the verdict as contrary to law, evidence, and the sense of the court, and to grant a new trial. Gibhard, contra. [MAJORITY — *Thompson, J.] *Thompson, J. delivered theopinion of the court. The plaintiff deduced a title to a certain piece or tract of land, lying in Schuyler’s patent, and which was known and distinguished by lot No. 156, and bounded as follows: “ All the one full and equal seventh part of all the undivided lands between Scoharie river and the hills, fiwn Fox's creek to aplace where two rivulets or runs of water conx in one, and fall or run in Scoharie river, by north of Gfarlickl Town'' The only inquiry on the trial was, whether the prenii.es in question were comprised within the boundaries above mentioned. The jury found a verdict for the plaintiff, and application is now made for a new trial. The description of the premises to which the plaintiff deduced a title, is vague and uncertain; they are described as lying beiwec.¡,' Scoharie river and the hills, from Fox's creek to aplace whera ¡wo rivulets or runs of water comem one, and fall or run in Scoharie river, by north of Qarlickt Toiun." This uncertainty may account, in some measure, for the different results in theyvrveys made by the opposite parties, and for the contradiction which appears in the testimony. The plaintiff’s eastern boundary appears to be the hills; and the inquiry was, where is the dividing line between the flats and the hills ? TK> testimony on the part of the plaintiff, except that of Adam B. Yroman, is principally as to general reputation, that this was called Le Boy’s lot. Mr, Yroman, however, swears, vlrnt the defendant showed him the corners of lot 156, and the boundaries, and he, the witness, said, they included the premises in question. On the part of the defendant, Nicholas Sternbergh swore, that the plaintiffs’ ancestor, under whom they' claimed as much as forty or fifty years since, ^pointed out to [*167] him his boundaries, and that they did not include the premises; that he was born and brought up in that neighborhood, and had always been well acquainted with the premises; that Jonas Leroy, the ancestor of the plaintiff, expressly declared to him, when he was pointing out his boundaries, that his deed did not cover that' land, which is now in dispute. It appeared also from the testimony of two other witnesses that the lands in dispute lay on what always has been called the hills, and that the defendant has occasionally cut timber on the premises, for forty or fifty years past. The testimony is certainly very contradictory, but none of the witnesses appear to have been impeached. Their testimony, however, may make a very different impression when put on paper, from what it would to hear them examined. Judging only from the case, the weight of evidence is with the defendant. And although this of itself is not a sufficient ground for granting a new trial in all cases, yet from the whole that appears, there is well founded reason to believe justice has not been done; and that another examination of the cause ought to be made before the possession is changed; we are therefore, of opinion, that a new trial ought to be granted on payment of costs. New trial granted. See ante, p. 25, n. (a).