Country Club Land Ass'n v. Lohbauer

Ingraham, J. (dissenting):

I cannot concur with Mr. Justice Patterson. The action was brought to restrain the defendant from trespassing upon certain property described as plot A ” in the possession of and claimed to be owned by the plaintiff. The court found that upon delivery to the plaintiff of certain deeds, “ the plaintiff became the sole owner and went into possession of all of the land mentioned in said two deeds- and has continued in possession of all of the same, excepting some parcels of land which it took by deed from James M. Waterbury and wife, which parcels since the date of said deed have been sold or leased by the plaintiff. That no part of plot ‘A’ above mentioned has been sold or leased by the plaintiff, and plaintiff is the sole owner and is in possession óf said plot ‘ A,’ being the southeasterly portion of the said property shown on said map; ” that the said property was conveyed to the plaintiff by Henry L. P. Boehme and wife; that the plaintiff had since the year 1888 been in the sole and exclusive-possession of the said land, claiming the same under a conveyance to it by metes and bounds.

This finding is amply sustained by the evidence. The plaintiff’s, title is based upon a partition deed, dated February 20, 1819, which describes the property by metes and bounds, and purports to convey the absolute title in fee simple to one George Ferris; and from him there is a clear chain of title conveying the property to the plaintiff. In an action for an injunction to restrain the defendants from trespassing upon real property in the possession of and claimed by the plaintiff, I do not understand that it is essential that the plaintiff should prove his title to the property beyond question. It is certainly sufficient if it is shown that the plaintiff is in possession of the property, which possession has continued for years and is based upon the claim of the fee founded upon a deed purporting to convey the-land in fee simple. That the plaintiff is and has been since the year *3141888 in the occupation of the land, 'claiming-the absolute and exclusive title to it, is not seriously disputed; and such possession is sustained by the evidence and is found by the court as a fact. That a party thus in possession of land is entitled to maintain ah action in equity to restrain a trespass is well settled by numerous authorities. (Baron v. Korn, 127 N. Y. 224; Wheelock v. Noonan, 108 id. 179.) It cannot be questioned but that upon the plaintiff’s testimony it established a valid title to this property. . The title is based upon the deed dated February 20,1819, made by Samuel Deal and others, commissioners in a partition proceeding in the Supreme Court, to George Ferris.. It seems that a certain tract of land, of which the plaintiff claims that the property in question was a part, became vested in one James Ferris, who died about the year 1773, leaving a last will and testament, by which this land was devised to the testator’s two sons, James and David Ferris; that in' the year 1818 a proceeding was commenced in the Supreme Court to partition such land, and in that proceeding commissioners were duly .appointed, who, on the third Monday of October, 1818, reported that certain lands, of which plot “ A ” was specifically described as a part, •could not be partitioned without great prejudice to the owner, and upon that day, by a rule of the Supreme Court duly entered, that report was confirmed, and the commissioners were ordered to sell all and singular the premises mentioned in the proceedings in this -cause and described therein as follows.” ■ The order then described by metes and bounds a tract of land, which includes the land claimed by the plaintiff in this action. The commissioners under that order proceeded to sell this property and reported to the Supreme Court on the 21st day of January, 1819, that they had made such sale, whereupon an order was entered confirming the report of the commissioners and directing them to execute a good and sufficient conveyance to the said George Ferris, the purchaser, “ which convey■ance shall' be a bar both in law and equity against all the owners named in the proceedings in this cause and all other persons claiming by, from or under them or any or either of them.”' In pursuance of such order the commissioners executed and delivered to George Ferris a deed which purported to convey three separate tracts of land, the second of which includes the. property in ■question. Surveyors were called by both the plaintiff and the defendants, *315who located the land thus conveyed as including the property in -question, and that seems to have been conceded upon the trial. 'The title thus conveyed by this deed to George Ferris.has become vested in the plaintiff by an unbroken line of conveyances describing the premises by metes and bounds and purporting to convey an absolute estate in fee simple in the property conveyed. This deed of the property under which the plaintiff claims title was made upon a judicial sale in partition, and the decree under which such sale was made adjudged that such property be sold by the commissioners. 'To carry out this direction of the court the commissioners sold the whole property, describing it by metes and bounds, and under the •direction of the court conveyed such property to George Ferris.

It is well settled that such a deed vests in the purchaser a presumptive title to the property. This presumption, followed by possession, is certainly sufficient to entitle the plaintiff to maintain an •action to prevent a trespass Upon the property thus conveyed to him. The defendant Jenkins, however, claimed an undivided moiety in the same property, and, upon the trial of this action, attempted to prove that title. This claim is based upon a series of conveyances, the first of which is a deed made by John Ferris and Anna, his wife, to Robert Heaton, dated March 28,1792, and which conveys a tract of land in Westchester county and also “ the full and equal undivided moiety, •or half part of the aforesaid undivided lands which are bounded on the north and on the south by two cross fences that extend into the Sound; easterly by the Sound and westwardly by the- premises hereby granted. Containing one hundred and forty acres, be the same more or less.”

It is claimed by the defendants that the property, an undivided half of which this conveyance purports to convey, includes the land in question in this action. But I fail to find any evidence from which this property conveyed or attempted to be conveyed by this deed •can be located. There is no description by metes and bounds and nothing to locate the property, an undivided moiety of which this -deed purports to convey. It is simply described as a half of certain undivided lands which appear to have adjoined the property described in the deed. Where these lands so bounded are is undisclosed. The -evidence further shows, however, that this property which was conveyed to Heaton by a deed dated March 28, 1792, was conveyed to *316Adam- and Noah Brown by a deed dated February 11 ¿ 1813, which conveys the property by the same description, and also an undivided moiety .or half part of the same undivided common-lands. 1 There is further evidence of a deed made by Noah Brown and Ruth, his wife, to Adam'Bfown, dated August 6, 1817. This deed purports, to convey the property conveyed, by the deed of Heaton to Adam and Noah Brown, except that there is no conveyance of the undivided lands. After describing the projxerty there conveyed the deed contains this provision : “ Together with all the benefits and advantages arising from the undivided lands, the said farm being -purchased of Robert Heaton and wife. Containing One hundred and forty acres, more or less.” Here is nó attempt to convey to the grantee the undivided lands, but the description would be appropriate if the interest of the parties was an easement or right of way upon such undivided lands. It was after this deed was executed' that, the partition proceeding was commenced and the deed ,of the commissioners made which conveyed the property by metes and bounds.. Taking all the evidence with the presumption that arises from a conveyance made by commissioners in partition, it would seem clear that-at this time the ■ Browns - made no claim to this property which was-included in the sale upon partition, and that the title to this property passed to the grantee in the deed from the commissioners. Adam. Brown, the grantee under the last-named deed, died in the latter part of the year 1817, leaving, a last will and testament giving his executors power to sell all of his real estate outside of the city of New York, and in pursuance of that po wer of sale his executors conveyed, by a deed dated February 6, 1833, to one John Drake, the same property described in the conveyance to Adam and Noah Brown, and the defendant Jenkins claims title under this deed. There is no finding by the court that the defendant Jenkins was ever in. possession of the property under this deed, and his evidence of possession is extremely shadowy, indicating a series of trespasses or. a claim of easement over the land, rather than a claim of fee. ■' But in none of the deeds under which the defendant Jenkins claims title-is there a single description of the .property by which it can. be located. In none of these deeds is this common or undivided land" described by. any description which would include the land in the possession of the plaintiff I think, upon the evidence, the 'plain*317tiff’s title to the land was established, or, at any rate, its possession of the property under a deed describing it :'by metes and bounds, was sufficient to sustain this action to enjoin a trespass.

I think, therefore, that the judgment should be affirmed;

Van Brunt, P. J., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.