[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 269 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 271 This is an action of ejectment to recover the possession of land, and the plaintiff, in order to maintain his action must now show that he has the right to the possession of the same, as against the defendant, who has been in the actual possession of the same since the year 1841, under orders in proceedings to acquire title to the same for railroad purposes.
From the statement of the facts of this case it is apparent that these defenses to the action might properly arise, viz.: Whether the deed of 1865 from the plaintiff to Copely and Miller does not convey as between them and the plaintiff the latter's title to the premises to them? Whether the defendant did not obtain title to the premises under the proceedings taken pursuant to chapter 242, Laws of 1836, for that purpose in 1841, and whether the defendant has not obtained title to the premises through its possession taken under such proceedings adverse to plaintiff, and continued from 1841 to the time of the commencement of this action, in 1873?
The General Term held, and, I think, correctly, that the deed from plaintiff to Copely and Miller, by force of the language and terms employed in it, conveyed whatever title the plaintiff had to the premises at the date of the deed. *Page 272
The deed assumes to grant and convey without reservation, exception or limitation, the lands described therein by metes and bounds. Following such description, the deed states the quantity of land embraced within the metes and bounds theretofore set forth in the deed. That amount is the same amount contained in lot "K." But the defendant was occupying and had been since 1841, a strip of land through lot "K." Hence, to make the statement of the amount of land strictly accurate, it was necessary to exclude from such quantity the quantity occupied by the defendant for its railroad. This construction of the deed is confirmed by other considerations within and without the deed. If the deed did not or was not intended to convey any title or right in the strip to Copely and Miller, where was there any occasion or propriety in providing for a reversion of the land occupied by the defendant to Copely and Miller in the event that defendant should remove its tracks or cease to operate its road laid upon the strip?
The term reversion signifies a return to a pre-existing or former state or place. The only pre-existing state or relation which Copely and Miller could occupy in respect to this land when defendant should cease to occupy it was that conveyed to them by the plaintiff's deed. The rule of construing deeds requires that they be construed most strongly against the grantor and the reasonableness and justice of such rule is never more manifest than when the grantor is, as in this case, a lawyer. Again if it was not the intention of plaintiff to grant this strip, why make any reservation of his claims for use and occupation or for damages for withholding it against defendant? If a grant does not carry the principal subject, it would hardly carry its incidents.
It seems to me very clear that the effect and purpose of this deed was to divest the plaintiff of all estate that he had in the strip of land in question, and to invest Copely and Miller with the same as far as lay in the plaintiff's power at the date of his deed, and as there was some question doubtless in the minds of the parties whether such deed would be effectual while the defendant was occupying such strip adversely, provision was intended to be made in the deed that Copely and *Page 273 Miller should have the land or it should revert to them without any additional instrument or costs when the defendant ceased to occupy it. This scheme was, no doubt, deemed the most practicable under the circumstances to give them what every purchaser would naturally desire, viz., the lot entire.
But the plaintiff practically urges upon the consideration of the court that it matters not, though the language of his deed and the circumstances surrounding the same indicate a grant of the premises to Copely and Miller and an intention to make such grant, yet the law would not permit him to do so. (2 R.S. 739, § 147; Dawley v. Brown, 79 N.Y. 390.)
Let us see whether that contention will stand the test of consideration.
Assuming with the plaintiff that the proceedings to acquire title for railroad purposes was wholly void, he was the owner of the remainder in fee of lot "K," and that portion of it occupied by the defendant. As such remainderman the plaintiff was not in possession in fact and was not entitled to the possession of the premises until the termination of the precedent life estate, which did not occur till the year 1868, some three years after the date of plaintiff's deed to Copely and Miller. Hence the land in question was not at the date of the deed from plaintiff to Copely and Miller held adversely to the plaintiff.
Until the precedent estate is terminated, giving the remainderman the right of possession, no possession can be adverse to the remainderman. (Christie v. Gage, 71 N.Y. 189,193; Grout v. Townsend, 2 Hill, 554; Clarke v. Hughes, 13 Barb. 151.)
Having reached the conclusion that the deed by its terms conveyed the lands in question to Copley and Miller, and that there was nothing to defeat its operation, and the plaintiff having thus divested himself of title to the premises in question there is no occasion to examine or decide the other questions discussed upon the argument.
The order of the General Term should be affirmed and judgment absolute be awarded against the plaintiff, with costs.
All concur.
Order affirmed. *Page 274