Broeck v. Livingston

The Chancellor. The master reports, that the parties, respectively, can make a good title to each other for the premises mentioned in the submission and award. But the defendant objects to the goodness of the plaintiff’s title, on two grounds: I. That the lands are charged with an encumbrance reserved in the deed of the 26th of October 1694, from Robert Livingston to Dirck Wessells, the ancestor of the plaintiff. By this deed, which was for a tract of land of which the premises were only a part, the grantor reserved to himself, and Ms heirs and assigns, the right of cutting timber, and of grazing, in the woods “ not appropriated or fenced inP 2. That the deed contained, also, a reservation to the grantor, and his heirs and assigns, of the yearly rent of 10s. [362] 1. With respect to the first objection, it appears to me to be the true construction of the grant, that the reservation . ° ’ . ceased and became extinguished, as to the lands belonging to yie piajntiff5 when those lands were enclosed by fence, and reduced from the state of common lands to that of specific and exclusive appropriation. It was proved before the master, that excepting the small Ogden spot, which was more recently enclosed, all the plaintiff’s farm had been under fence for above 30 years, and that the exercise of the right reserved by the deed had not been claimed or asserted within that period of time. It cannot be supposed to have been the intention of the reservation, that the lands should always continue subject to that servitude, however appropriated by the owner; for this would be giving to the grantor a right repugnant to the nature of the grant itself, and to the absolute and beneficial" ownership which an estate in fee was intended to convey. By construing the words according to their obvious and natural sense, we give to the reservation a reasonable operation, and one consistent with the interest of the grantee. It was no more than a right of common, and that right is utterly inconsistent with the exercise of the right of enclosure. The plaintiff either had no right to appropriate and fence in the woods, or the right of cutting and grazing ceased as soon as the woods were actually and bona fide enclosed. The long disuse of this right, if even it was used, is evidence of the sense of the parties that the right ceased when the woods w-ere fenced in; and a right of this kind, as well as other rights, may be lost by long-negligence and disuse. This was so said in Gateways case, (3 Leon. 202.) It will let in the presumption of a release, or other discharge, and such presumptions are to be favour, ably received in opposition to dormant claims, because they conduce to the quiet of titles, and the security of estates; and this argument would be entitled to weight, if the construction which I have given to the grant was insufficient or doubtful-, [363] 'i. The other objection founded on the quit rent, cannot he admitted to be set up in this case. The covenant that each party was to malee a “ good and valid conveyance in the law,” will be satisfied if the party can make a good title, subject to that portion of the nominal quit rent of 10s., which might fall upon the premises of the plaintiff. It appears that this reservation of rent was well known to the defendant when he made the contract; it was a matter, also,"of public notoriety, that all the lands in the manor, were subject to such a quit rent. It was never, then, within the. contemplation of these parties, that this rent was to form an obstacle to title. The quit rents due to government, under all colonial grants, might as well be set up as an objection to the performance of any covenant to convey. This rent was declared to be in lieu of all other rents, and was evidently, as the counsel observed, nothing more than the recognition of the manorial seigniory, and which, at that early day, was deemed a matter of some importance. On a due apportionment of that rent, if it was now to be collected, the burthen, or part, falling on the farm of the plaintiff, would be but fifty-four cents a year. As I do not consider this rent as forming any obstacle to the mutual good title intended by the contract of the parties, it becomes unnecessary to agitate the question, whether the rent itself has not become extinguished by lapse of time, owing to the presumption arising from the want of evidence of its having been demanded, or paid, for the last 60, if not 100, years. I shall, accordingly, decree a specific performance of the agreement of the parties, mutually to convey. The only remaining point is, whether the defendant is to be charged with interest on the 10,750 dollars, from the 1st of April, 1813. If he is to be so charged, then there ought to be an account taken of the rents and profits of the respective farms for the last two years. But as each party has continued in the possession of their respective original farms, and as the farm of the plaintiifis to be considered as exceeding in value [364] the defendant’s farm, to the amount of 10,750 dollars, I think it would be just and equitable to leave each party in the en-r J joyment of the rents and profits which he has hitherto recejye¿|} an¿ that interest on the sum should not commence until the titles and possessions are exchanged. The decree will then be, that the parties mutually convey and deliver possession by the 1st of April next, and that the defendant pay to the plaintiff, in two years from that day, the 10,750 dollars, with interest, annually, from the 1st of April next, and give security according to the award; and that, in the mean time, neither party commit waste on the premises of which they are now in possession; and that the defendant pay to the plaintiff his costs of this suit, to be taxed. Decree accordingly.