Jackson ex dem. Ostrander v. Hasbrouck

Yates, J. delivered the opinion of the court. In this cause, the lessors of the plaintiff deduced a title under a deed given to Van Horne, in virtue of a partition of a tract of land comprehended in a patent granted to Bradley and Jevou, made in the year 1747, by the then prietors, of whom Abraham Hasbrouck, the father of the defendant, and under whom he claims, was one, who, by that partition deed, released, according to a survey then made at the instance of the proprietors, by one John Eltinge, and on which the partition was founded, all his right in lot No. 1. in that patent. The defendant derived his title to the premises from Abraham Hasbrouck, as lying within the boundaries of an adjoining patent, granted to Bradley and Jamieson, subsequent to the patent of Bradley and Jevou, and claimed the premises on the ground of a mistake made in the original survey of John Eltinge. Thus, it appears, that the lessors of the plaintiff and the defendant both claim under separate persons, parties to this partition ’ deed. The first inquiry, therefore, will be, whether it was competent for the legal representatives of Abraham Hasbrouck to controvert the northern line of lot No. 1. in the survey by Eltinge of the patent to Bradley and Jevou, -by setting up a title under the patent to Bradley and ' Jamieson. By the release of partition between the proprietors, it will appear, from the recital, that they agreed to make ■ a division agreeably, to the survey of Eltinge. This being a deed, under their hands and seals, must, as between the parties to this instrument, be a complete establishment of the line run by that survey, so that the inquiry for the jury, under those circumstances, on the trial of this cause, could only be, whether Eltinge, by his survey, comprehended the premises in question, within the boundaries of lot No. 1. This survey was, by the judge [334] before whom the cause was tried, properly considered as 0pera|;ing as an estoppel against the defendant, and con-eluded him from controverting the northern line of Iqt ^°* on the ground of a mistake in that survey, alleged to have been discovered by the other survey, made in 1801. Admitting even, that a mistake was made by Eltinge, in his survey, yet as the proprietors by the deed, have recognised the lines run by him, and made partition accordingly, and as the defendant claims under one of them, he cannot now gainsay an' act thus deliberately assented to,, and subscribed by him; nor can this mistake be rectified, unless done by a subsequent agreement of the parties. The propriety of the rule of law, whereby parties or privies are not allowed to controvert facts admitted by their solemn deed, appears in this case. The mistake was made in the survey of another lot, containing ten: chains too much; so that the loss occasioned by this mistake would exclusively fall on the proprietors of lot No. 1. and thus create an inequality in the partition. An attempt was made to prove an agreement as to the northern line of this lot, but instead of an abandonment of the possession of the lands lying between the lines of Bruyn and Eltinge, the witness said that he considered the land to be his, up to a fence, standing on a line called Sctetfs line, confessedly south of Eltingé’.s line, and as far north as the lessors of the plaintiff recovered on the trial; that he never gave it up, but meant some day to try the title to it, notwithstanding' the removal of the fence by Abraham Hasbrouck; and that one year subsequent to such removal, he took the avails of the land; so that, in fact, no evidence was introduced of an alteration by agreement, in relation to the lines of No. 1. or the northern line of the patent, as run by Eltinge. This line was recognised as the true boundary, by the partition deed between the proprietors, has been so generally received, and possession of the premises in question held for upwards of twenty years under it, and ought not now to be disturbed. [335] The case of Skipwith v. Green, (1 Str. 610.) does not support the principle contended for by the defendant’s counsel, but establishes, that with respect to every essential part of the deed, the parties claiming under it are estopped from controverting it. The court are of opinion, that the defendant must take nothing by his motion. Thompson, J. not having heard the argument in the eau.se, gave no opinion. Rule refused.