Jackson ex dem. Ellice v. Britton

By the Court, Marcy, J. The general rule of law that in settling boundaries, natural or artificial objects are to control courses and distances, is not disputed. These objects control, it is admitted, because they are most certain; but it is supposed by the plaintiff in this case that the rule ought not to apply if the course or distance is certain, and the natural or artificial monument referred to in the deed is uncertain. There is no conflict about the boundaries on the west, south [510] and north of lot No. one on Catharine-street, to which the defendant has title, and within which he contends the premises in dispute are embraced. Whether they fall within this lot or not depends upon the place where its eastern boundary is fixed. The language of the lease is satisfied as to its designation of distance, by giving the lot 110 feet as a front along Catharine-street, and 30 feet in the rear, but as to its eastern boundary it is not satisfied without extending it to lot No. two. Lot No. two is an artificial boundary, and where its western limit was at the date of the lease is said to be now a matter of uncertainty. No map made previous to 1809 was produced on the trial, on which these lots were laid down. On a map of that date made for the ancestor of the lessors of the plaintiff, lot No. one on Catharine-street, if bounded by lot No. two on the east, as the lease declares it to be, would include the premises in dispute. There can be no gore between lots No. 1 and 2 on Chtharine-street, because the defendant’s lease for No. one, is bounded on No. two. The defendant has a right to extend his lot to No. two, notwithstanding the distance specified in the lease. It is to be presumed that the location of lot No. two was as certain when the lease was made as that of No. one; and if it was certain, it is not a matter of dispute that it fixed the eastern boundary of lot No. one, regardless of the distances mentioned in the lease. It does not seem to me correct to say, that when the location of lot No. 2 was known, it controlled and prevailed over the distance ; but now, when this location has become a matter of dispute, perhaps of doubt, it is to be disregarded in fixing the extent of lot No. 1, and distance alone is to be looked to in settling that question. Course and distance may be, and indeed almost always are material evidence to shew the place of the artificial bounds of a tract of land referred to in a deed. If there had been no evidence other than the lease in this case, and the undisputed boundary on Catharine and Ann-streets, the premises in question must have been considered as a part of lot No. 2 ; but there was evidence going to shew that they were embraced in lot No. 1. This evidence should have been submitted to the jury, and the question of location left to their determination. [511] If the defendant can shew that his lease for lot No. 1 in-eludes the premises, his title under it is not impaired or affected by any negotiations had by him with the agents of the lessors of the plaintiff for the purchase of them. What passed, however, between him and those agents, if it related to the land in dispute, would, I think, be conclusive against any claim founded on adverse possession. It is unnecessary to consider the exception to the decision of the judge excluding the lease of the other lots in the village of Little Falls, because a new trial must he granted for the misconstruction of the deed, and the defendant will have an opportunity to supply what the judge thought, and in my opinion correctly, a defect in the proof of its due execution. The lessors are aliens, and though allowed by statute to hold real estate, are inhibited to lease or demise it. The statute could not have contemplated the case of a fictitious lease required in the action of ejectment. Such a construction would defeat its very object. To allow aliens to hold real estate, and at the same time deprive them of all remedy to maintain their rights to it, would be little better than mockery. If dispossessed, they could not, under the law as it existed at the time this permission to hold real estate was given, recover their property without making, or rather being supposed to make a lease. Fiction is resorted to for the purpose of advancing right, but is not allowed to take the place of reality to defeat it. In point of fact, there has been no leasing or demising in this case. The very case which was adduced on the argument to support the objection to the action, (11 Johns. Rep. 418,) appears to me to do it away. In that case there was no objection to the demising to James Jackson, nor to alienism alone; but the objection was to the maintenance of the suit by the lessors, they being alien enemies when it was commenced. The court did not decide that the right to prosecute did not exist, but said it was suspended during the war. Motion for new trial granted.,"