Jackson, ex dem. Butler v. Gardner

Per Curiam. The claim of Wood to the premises is founded on the supposed lease of the 12th of December, 3793, and the lease of the 29th of January, 1794. He shows no other title than what one or the other of these leases may give him. 1. As to the lease of 1793. This lease was voluntarily surrendered by Wood to, the agent of Hamilton, the lessor, and destroyed on the 29th of January, 1794, when he accepted of a new lease.. Admitting that this lease was not surrendered, in due form of law, according to the requisition of the statute of frauds, so as to devest Wood of his interest under it, yet the existence and contents of this lease were not proved-with sufficient certainty to justify the plaintiff’s claim. As Wood voluntarily surrendered this deed to be destroyed, he ought not to avail himself of any obscurity or uncertainty? in respect to its contents. Every difficulty and presumption ought to be turned against him. He ought not to recover any 1 and under that lease, but-what appears, with absolute precision and certainty, to have been covered by it. And what is the testimony on this point ? The proof of the execution of the lease-is very loose. T. M. Wood says, that he thinks that he subscribed it as a witness; and there is much less proof that his instrument was an actual lease or conveyance of the land. Philips, who saw it once, was not positive whether it was a lease, or only a contract for a lease; and Platt, who received it, when surrendered, is equally uncertain on this point. But the location and extent of the lands conveyed, is shrouded in absolute uncertainty. T. M. Wood says it was for 200 acres, in the south-east corner of the lot, but whether it was to include the whole creek, he [405] could not say, though that was his impression. The land, he says, had not then been surveyed. L Foster, who saw it in December, 1793, was not certain whether it secured the banks of the creek farther than the extent of the 200 acres; and he said it was not to extend further north than the south bounds of Stephens's land; but that as the creek had not then been traversed, it was not known whether the 200 acres would run over the creek, or not. E. Philips confirms the grant of the same bounds, though he adds that he did not remember the bounds exactly. To support a claim to the creek and lands of the defendant, after a lapse of 16 years, upon such proof of the contents of a lease, so long ago voluntarily destroyed, by the consent of the party himself, and when, perhaps, the evidence of a valid surrender in writing existed on the lease, would be to create an extravagant and dangerous precedent. It was incumbent on the plaintiff to have stated its bounds with precision, or to have shown the reduction of those vague bounds to certainty, by an actual location at the time. There would not have been any inducement to the surrender, and for such anxiety as Wood discovered for a new lease in January, 1794, if the- first lease covered the creek in question. The plaintiff ought now to be confined to such location of the 200 acres, in and adjoining the south-east quarter of the lot, as can be made consistently with the defendant’s right; and there is land enough for such a location. It is not improbable that the quantity of acres may have depended on the contents of the land within certain definitive bounds, such, for instance, as south of Stephens's land, and east of the creek; and this supposition is the more plausible, because it appears that Wood never actually exerted any ownership or possession further west. The title, then, to the premises, as founded on the first lease, must fall to the ground, and this source of title406 was properly abandoned upon the argument, by, one of counse| for the plaintiff.(a) 2. The cause depends upon the operation and. extent of the deed to Mulhollen, of the 26th of December, 1793} for if that deed does not cover the premises, the second lease to Wood undoubtedly does. No well founded objection can be made to the validity of this deed, and thfe single inquiry is touching its extent. It conveys the whole lot with the exception of Stephens's 200 acres, and “ 200 acres to M. Wood, and Rosemark's 40 acres, both being taken off the south-east corner of said lot.” This deed clearly conveys the; land in dispute, unless it be contracted by the exception. But Stephens's 200 acres in the north-east corner, and the other 240 acres, can all be located, without any violent construction, so as not to touch the creeks, mills, or possessions of the defendant» In a case in which the location of the 200 acres is so extremely vague, this ought to be done, because the posT sessions taken at the time áre to be considered as a practical location, by the mutual consent of the parties. It is an old principle of law, that exceptions in a deed, and every uncertainty, are to be taken favourably for the grantee, (Co. Litt. 183. a. 9 East, 15. 3 Johns. Rep. 387.) NoW it appears that Mulhollen took possession, immediately, under his deed, and that exclusive possession has been had, and valuable improvements made, under that deed, on the lands in question, and that Wood, and'those under him, have never possessed westerly, of the creek, and of Stephens's 200 acres. He ought, then, at this day, to be restrained from setting up any new location, not absolutely necessary to give him his quantity of land, and which invades the possession of the defendant. Mulhollen’s deed shows that the title to such possession is out of the lessors of the plaintiff., Judgment ought, therefore, to be rendered for the defendant. Judgment accordingly. Footnotes [(a)] The reporter was absent, and did not hear the counsel in. reply.