Reed v. . McCourt

The evidence, respecting the line between these parties, was somewhat conflicting, but the preponderance was clearly with the plaintiff, not only as to those parts of the *Page 437 land claimed, which he did recover, but as to that portion which he did not. However that may be, the court having found in favor of the plaintiff on the facts, and the judgment, on that finding, having been affirmed, this court cannot review the finding. In fact, as there was no motion for a nonsuit, there is no question arising on the evidence before us. Both parties derived title from one Jonas Reed; the defendant through one Edwin Reed, whose deed from Jonas was delivered in 1843; the plaintiff by deed from Jonas, delivered in 1844. The deed to Edwin was bounded on the north by land "owned and occupied" by plaintiff; and to show that plaintiff, in 1843, owned as well as occupied land on the north of the land described in Edwin's said deed, he offered, and was permitted to prove by parol, that he held a written contract for the purchase of the premises described, for some years previous to 1844, and that his deed was received in pursuance of said contract. This evidence was objected to for several reasons, and forms one of the exceptions on this appeal. The existence of such a contract, at the time of the execution and delivery of the plaintiff's deed, was clearly proved; it was, also, sufficiently shown, that the contract was produced and delivered to plaintiff's grantor, to enable him to obtain the description therefrom for this deed. All this, it was admissible to show by parol, whether the contract was or was not lost. To establish that the contract had been lost or destroyed, it was shown that it was not in plaintiff's possession or custody; that he did not know where it was; that he last saw it when delivered to his grantor, at the time his deed was made, in 1844; that said grantor was now deceased, and a search had been made among his papers without success; and that a son of the vendor, with whom he lived, and, also, his widow, had made search, and they could not find the contract. This proof, in connection with the fact that the contract had no value or importance to the parties thereto, was ample to admit parol proof of its contents. (Jackson v. Root, 18 J.R., 60; Leland v. Cameron,31 N Y, 120.) *Page 438 The evidence of the existence of an executory contract between plaintiff and his grantor, prior to the deed, and proof of its contents was properly admitted; that evidence and proof showed an equitable ownership of the land in dispute, which, together with possession at the time, fixed the northern boundary of the land conveyed by the deed of 1843, under which the defendant claims. At the time the defendant purchased this lot of Edwin Reed, there was a loan mortgage outstanding on the south half of lot No. 20, and on a part of the north part of lot No. 6; the lot conveyed to defendant was the south part of lot No. 6. To protect defendant against said mortgage, in case it covered any of the land conveyed by Edwin Reed to defendant, said Edwin gave to said defendant a bond of indemnity, with two sureties, one of whom was the plaintiff. Said bond commenced with a recital as follows: "Whereas, I, Edwin Reed, of, c., have this day conveyed by warranty deed to Matthew McComb, all that certain farm and piece of land situate in Moriah aforesaid, which I have heretoforeoccupied, being a part of lot No. 6, in the Iron Ore Tract, and being the same piece conveyed to me by Jonas Reed by warranty deed, dated April 10, 1843," c. It was shown on the trial, that at the date of this instrument, and for some time prior, the said Edwin had occupied the whole of the land in dispute in this action; and it is claimed that the words in the recital "which I have heretofore occupied," estops the plaintiff, the surety therein, from claiming the land. An estoppel may arise from matters of record, by deed, or inpais. It is a preclusion in law, from alleging a fact in consequence of some previous act, c. Recitals in an instrument are evidence against the party making them, but when immaterial to the instrument, or when the action is not founded on the instrument, but is wholly collateral to it, the recitals work no estoppel. (Champlain, c., v. Valentine, 19 Barb., 484-88.) This question, on almost similar facts, was before the Court of Exchequer, in Carpenter v. Butler (8 Mees. Welsb., 209), where it was held that "a party to *Page 439 an instrument is not estopped in an action by the other party, not founded on the deed, and wholly collateral to it, to dispute the facts recited, although the recital would be evidence." In the case under consideration, the recital was only that of the principal, it was wholly immaterial to the object and purpose of the bond. The purpose and the intent was security against an outstanding mortgage, which it was feared might prove an incumbrance on the land conveyed to the defendant. It is sometimes said that estoppels are odious, and if such an unnecessary and immaterial recital as this, inserted in a bond of indemnity, could be tortured into an estoppel against a surety, the term would but feebly express the contempt which ought to exist against the rule. It was also insisted that "if the court rejects the deed from Jonas to Edwin Reed, it was error." As the case does not show that the court did reject the deed, there is nothing on which error can be predicated. On the trial, the defendant offered to show that when the parties were on the disputed premises, the plaintiff offered to have the fence between them put in a certain place pointed out by him, which defendant did not then agree to; but afterward plaintiff told defendant to put it there, and he did so. This was objected to and excluded, and defendant excepted. This offer was clearly inadmissible in an action involving the title to land. Had the action been trespass for erecting the fence, the evidence would have been admissible to show a parol license. The question in dispute in this action was the title to the locus in quo, and not to establish a license or permissive right of occupation. The evidence offered did not amount to a parol admission of title. It was, therefore, wholly incompetent and properly excluded. The judgment should be affirmed.