Morss v. . Salisbury

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 638 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 639 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 641 The defendant, in support of his plea of title to the premises first described in the complaint, introduced a deed bearing date the 25th day of May, 1816, from Jacob Haight, sheriff of the county of Greene, to John Brandow, of a tract of land containing sixty acres, more or less, which had been sold by him under an execution issued out of the Supreme Court, on a judgment recovered by Elisha Williams against David Swart. There was testimony showing that Swart was in possession at the time of the sale of a portion at least of the premises so sold and conveyed, and there was conflicting evidence on the question whether John Brandow and his devisees, under whom the defendant claimed, had been in possession, exercising acts of ownership from and subsequent to the sheriff's sale and conveyance, and by virtue thereof over the premises covered by the defendant's plea of title. *Page 642 The finding of the judge, that the defendant and those under whom he claimed title, and not the plaintiff, had title thereto, was necessarily based on the decision of that controverted question of fact in favor of the defendant. That decision having been affirmed by the General Term is conclusive on this court. The declarations of Brandow which were objected to were admissible to characterize the possession of the defendant as adverse to any title of the plaintiff, and it was sufficient to justify its admission that the defendant had pleaded title generally without showing that it was claimed or held by adverse possession. It follows, from the views above expressed, that there is no ground for the reversal of the judgment so far as it relates to the premises first described in the complaint. We will now consider whether the decision, as to the second or the 100-acre lot, is erroneous. It is conceded that John Brandow, on the 22d day of April, 1839, was the owner of the said lot and in possession thereof, claiming title. On that day two instruments in writing between him and B.G. Morss Co., of which firm the plaintiff was a member, were executed, one of which was delivered to each party. That given to Morss Co., and under which plaintiff claims title, was, so far as it is material to present the ground of his claim, as follows: "Memorandum of an agreement made and entered into this twenty-second day of April, eighteen hundred and thirty-nine, between John Brandow, Esq., of the first part, and B.G. Morss Co. of the second part, all of the town of Prattsville, Greene County, New York, witnesseth, that the said party of the first part has and does, this day, grant, bargain, sell and set over to the said party of the second part all the land and timber, except the hard wood on the 100 acres of land situated in the town and county above-named, bounded on the north by the Hardenburgh line, on the east by lands of Z. Pratt Co., on the south by the so-called Myers lot, on the west by the lands of Lucas Elmendorf." *Page 643 It then provided that, "in consideration of the above," the said party of the second part should pay unto the said party of the first part thirteen shillings and sixpence "per cord for every cord of bark, peeled on the same," and interest on the same from the date of the instrument. That the sum of $1,500 on account of the above bark should be paid as soon as the first day of December next after its date, if the party of the first part wished it, and the balance was to be paid yearly as the party of the first part wished, "and as the bark and timber" were taken off, together with the interest annually. Then followed these provisions: "The party of the second part are to have the immediate possession of the land for the purposes above stated and what time they choose to take the same off. Also, the right of crossing the lands belonging to the party of the first part for the purpose of passing to and from the above-named lot. It is understood between the parties that the party of the first part is to receive annual interest on the whole amount of bark peeled or taken off from the lot from this date; the party of the second part to run all risks of fire after two years." The instrument delivered to Brandow was the same in all respects, except that, in the clause disposing of the property sold, the word "bark" was used instead of "land" before the words "and timber," thus purporting to sell and convey all the bark and timber, etc. Each of the instruments was subscribed by the parties thereto, but the seal of neither of them was affixed, and the question is presented whether the plaintiff acquired any right or interest under them in the land itself, and my conclusion is that he did not, for the following reasons: 1st. Assuming that the instrument delivered to him is to control the right of the parties, it did not pass the legal title. It was not under seal and was therefore inoperative and ineffectual for that purpose. Without reference to the rules of the common law, it is sufficient to say that it is declared by the Revised Statutes that "every grant in fee or of a freehold estate shall be subscribed and sealed by the person from *Page 644 whom the estate or interest conveyed is intended to pass, or his lawful agent." (1 Rev. Stat., p. 738, § 137.) The provision cited by the plaintiff's counsel from 1 Rev. Stat., p. 762, § 38, has application only to the meaning of the term conveyance, as used in the chapter providing for the proof and recording of conveyances of real estate, and declaring what instruments are included under it for the purpose of record. 2d. The two instruments are to be construed together in determining the meaning of the parties thereto. They were executed at the same time, and were intended to be duplicates expressing the same terms and language, and one cannot be regarded as more expressive of and declaring the intention of the parties, nor needing reformation to declare that intention, than the other. On examining them together, and the terms and provisions which are the same and identical in each, there is no reasonable ground for believing that a sale and conveyance of the land itself was contemplated. The language used is inapt and inappropriate to carry out that object. It, as used in the instrument delivered to the plaintiff, conveys "all the land and timber, except the hard wood, on the 100 acres of land situated," etc., evidently having reference to what was on the land as the subject of conveyance; and if the construction given to it by the plaintiff is correct, it would convey all the land upon the 100 acres of land as well as all the timber, except the hard wood, thereon. Such is not the ordinary or usual mode of describing land intended to be conveyed, but if the word bark is substituted for land, then the terms of the grant or conveyance are applicable and appropriate. The terms of payments are, moreover, regulated by the quantity of bark taken off the premises, and the clause providing that "the party of the second part are to have the immediate possession of the land for the purposes above stated, and what time they choose to take the same off." The purposes referred to are peeling the bark and taking the same and the timber sold off from the land; and it was very proper *Page 645 that a provision fixing the time during which the purchaser thereof should have the right to do it, if the land itself was not sold to him, but appears to be entirely inconsistent with such a sale. In that case his ownership would secure that right; and a limitation of the time during which the seller should have the privilege of taking off the hard wood reserved and excepted by him for the sale, would be proper and necessary. Without a further reference to the particular terms and provisions of the instruments in detail, I deem it sufficient to say that the whole scope and tenor thereof clearly show that the land itself was not intended to be sold, and the omission to make a provision for the delivery of a deed is also confirmatory of that construction. Assuming the views above expressed to be correct, it follows that the title of John Brandow to the land was not divested, and that the possession of the plaintiff was subordinate thereto, and was limited and restricted to the single purpose of securing the bark and timber purchased by him. It is claimed on behalf of the plaintiff, that the judge erred in excluding evidence that the price paid by him was the full value of the land, bark and timber together, except the hard wood. We think not. The contract itself declared and expressed what was sold, and the price to be paid therefor, could not affect that question, and was wholly immaterial. It only remains to be considered, whether the plaintiff was entitled to judgment for costs. He failed on the issues affecting the premises, as to which title was pleaded; and the judge has found that neither the possession of nor the title to the residue was made a question or controverted on the trial by the defendant, and the amount of recovery for the trespass thereon by the plaintiff was less than fifty dollars. A reference to the pleadings and some of the provisions of the Code will be useful in the consideration of that question. The action before the justice was brought for the recovery of damages for an unlawful entry on two different parcels of *Page 646 land. The plea of title was interposed to a greater portion of the first and to the whole of the second. There was a separate cause of action alleged as to each of those parcels, but not as to any specific part of either; and as the plea of title affected both of those causes, the case does not fall within section 62 of the Code, which provides that if, in an action before a justice, the plaintiff have several causes of action, and a plea of title accompanied with the requisite undertaking is interposed to one of them, the justice shall discontinue the proceedings as to that, and may continue them as to the other or others of them. It is therefore necessary to refer to the other sections. Section 55 provides that "in every action brought in a court of justice of the peace, where the title to real property shall come in question, the defendant may, with or without other matter of defence, set forth in his answer any matter showing that such title will come in question," etc. Section 56 requires the delivery of an undertaking to divest the justice of jurisdiction, and section 57 declares that, "upon the delivery of the undertaking to the justice, the action before him shall be discontinued, and each party shall pay his own costs." It is then provided, by section 60, that "where a suit before a justice shall be discontinued by the delivery of an answer and undertaking, as provided in sections 55, 56 and 57, the plaintiff may prosecute an action for the same cause in the Supreme Court, and shall complain for the same cause of action only on which he relied before the justice, and the answer of the defendant shall set up the same defence only which he made before the justice." The next section (61) declares that "if the judgment in the Supreme Court be for the plaintiff, he shall recover costs; if it be for the defendant, he shall recover costs, except that upon a verdict he shall pay costs to the plaintiff unless the judge certify that the title to real property came in question on the trial." The effect of the interposition by the defendant of the plea of title and the delivery of the requisite undertaking under the preceding provisions, was to divest the justice of jurisdiction, *Page 647 and it was optional with the plaintiff to prosecute an action for the same cause or not, at his election. The only consequence resulting from his failure to do so was a liability to pay the defendant the costs he had paid to the justice on the discontinuance. If such action was brought, then the pleadings and costs therein were to be regulated and controlled by the said sections 60 and 61, and the only just and reasonable construction to be given to section 61 is, that the costs in the Supreme Court are to be governed by the decision and judgment on the issue presented by the plea of title before the justice which caused the prosecution of the action in the Supreme Court. The last clause of that section, which provides that the defendant, although he recovers a verdict, shall nevertheless pay costs to the plaintiff, unless the judge certifies that the title to real property came in question on the trial, evidently has reference to the recovery on the plea of title. A different rule would charge a defendant with all the costs of the action, including those paid to the justice on the discontinuance of the action, although he fully sustained his defence as to all the acts complained of as trespass on the land to which title was pleaded, and the plaintiff's recovery was limited to those only to which no defence was interposed. In other words, the entire costs of the issues raised and tried in an action would be charged on the prevailing party. A construction leading to such a result cannot be sustained. It is true that the judge has found that the cattle of the defendant have committed trespasses, causing damage to the plaintiff to the amount of six cents, and it may be conceded that he ought to have borne the necessary costs for the recovery of those damages. That concession, however, affords no ground of right to the costs in the Supreme Court. If he had limited his cause of action before the justice to the trespasses for which he has finally recovered, he would also have recovered the costs allowed by law; but he has, by claiming title to land not owned by him, caused all the costs which *Page 648 have accrued in the Supreme Court, and the law declares, and properly, that he should bear them. It follows that there is no ground for the reversal of the judgment; it must, therefore, be affirmed, with costs.