(dissenting):
The plaintiff claims title under a deed given in 1853 by the public authorities, because of the non-payment of taxes assessed upon lot 15, etc. The description is, “ sixty ae>’es to be laid out in a square form as nearly as may be in the north-west corner of lot 15,” etc.
Lot 15 contains 101 acres. It is nearly rectangular in form; the two sides inclosing the north-west corner being respectively twenty chains and about fifty-one chains in length, and the remaining two sides of about equal length. It is obvious that the largest square that can be laid out within such a lot must be limited to twenty chains square. Such a square would contain forty acres. But the plaintiff has recovered sixty acres, being a rectangle twenty chains by thirty. Ilis title is a tax title, and by it he acquires no more than it actually conveys. As was said in Tallman v. White (2 N. Y., 70), a tax “ sale is a rigorous proceeding. It divests the owner of his title without his consent, and often for a very trivial consideration ” — in this case for eighty-three cents. The purchaser is not entitled to invoke for his protection those liberal rules for the interpretation of deeds which obtain between private parties in aid of a grant. (Jackson v. De Lancy, 13 Johns., 539; Mason v. White, 11 Barb., 187; Jackson v. Striker, 1 Johns. Cases, 284; Jackson v. Rosevelt, 13 Johns., 97; O'Donnells v. Lindsay, 39 Superior Ct., 537.) A leading rule of the interpretation of the description of land contained in deeds among private parties is, that that which is certain must prevail over that which is less so, and hence quantity, as the *166less certain call of the deed, often yields to courses and distances which are more certain, and these again to fixed natural objects which are still more certain. ( Wendell v. The People, 8 Wend., 183; Northrop v. Sumney, 27 Barb., 196; Higinbotham, v. Stoddard, 72 N. Y., 94.) It is apparent in this case that the quantity is the least certain call of the deed. A square can be laid out embracing the north-west corner, but such a square can contain only forty acres. To give the plaintiff sixty acres he must have a square and a-half, and the deed has not informed us where the half square shall be located. It should-be rejected as inconsistent with the. certain calls of the deed; especially so in the case of a tax title, where, for twenty-three years, there was no attempt to locate the land.
The defendant offered, but was not allowed, to prove that he and his grantors had been in the uninterrupted possession of the premises for twenty-one years immediately prior to the commencement of this action, claiming title under a conveyance.'
The -defendant, by his answer, denied the plaintiff’s title; he alleged his possession to be lawful, and alleged valid paper title in one Henry N. Mead, who died, and under his heirs defendant is in possession claiming title.
The exclusion of this testimony is sought to be sustained, upon the ground that the defendant did not plead either the statute of limitations, or adverse possession for twenty years. The statute of limitations, to be made available as a defense, should be affirmatively pleaded. (Code Civil Pro., § 413.) It is a technical defense and bars the plaintiff’s suit without disproving bis right and without respect to the defendant’s right. But adverse possession of sufficient length under a conveyance, disproves the plaintiff’s title.; it establishes the defendant’s right of possession, both of which issues this answer presents. It is not necessary to plead the evidence respecting these issues. The plaintiff must recover upon the strength of his own title. (Brady v. Hennion, 8 Bosw., 528; Wallace v. Swinton, 64 N. Y., 188.) And therefore defendant may, under the general issue, give in evidence whatever tends to disprove plaintiff’s allegar tion of title in himself. The proof offered “ went in denial of the truth of the complaint,” and that under the old form of pleadings was the test of the admissibility of evidence under the general issue. *167(Gould’s Pl., chap. 6, §44; 1 Chitty Pl., m. p., 497; Tyler Eject., 464; Boomer v. Koon, 6 Hun, 645; 2 R. S., 306, §§ 22, 23.)
I advise the reversal of the judgment.
Present — Learned, P. J.; Boabdman and Landon, JJ.Judgment affirmed, with costs