Hansee v. Mead

Learned, P. J.: First. The appellant claims that the description in the deed given by the county officials is too indefinite. It is as follows: [163] “Sixty acres to be laid out as aforesaid” (that is, at the expense of the grantee) “ being in a square form, as nearly as may be, in the north-west corner of lot No. 15 of the Connecticut tract,” etc. It appears that lot 15 is oblong; about twenty chains by fifty-one chains. It is nearly rectangular. Its sides run about northwest and south-east. Its ends about north-east and south-west. The plaintiff claims to lay out his sixty acres by running a line, parallel to the north-westerly end, or northerly end, as it might be called. There is a corner which might be called a north corner and another which might be called a west corner. But neither of these is accurately a north-west corner. However, as laid out, the sixty acres lie equally in both these corners; and they are in a square form, as near as may be. We think it plain that, if the sixty acres can be laid out at all, they are properly laid out as claimed by plaintiff. And though the shape is not exactly rectangular, or equilateral, yet it is laid out “ in a square form as nearly as may be.” The system of such a sale for taxes is to sell a certain quantity of the property. And therefore the number of acres mentioned must control; contrary to the usual rule in cases of conveyances by an owner. The defendant insists that all which could be taken would be a square, as near as might be in the corner, reaching from that corner half way to the opposite corner. This would be a piece about ten chains square; much less than sixty acres. We think that is not the meaning of the deed; and that the description was sufficiently definite and the land properly laid out by the plaintiff. (Jackson v. Vickory, 1 Wend., 415; Bartlett v. Judd, 21 N. Y., 204; Digert v. Pletts, 25 Wend., 404.) Next. The defendant insists that the deed from Boyce to Hansee did not convey this land. The description is: “ Sixty acres in the west part of lot No. 15,” “in the Connecticut tract.” But it sufficiently appears that, by a conveyance from the heirs and executor of O’Neill, the grantee from the officials, Boyce had become the owner of the land cobveyed by the tax deed. He had no title to any other land in lot No. 15, except what he bought from O’Neill. And it will be seen on examining the map that the language which describes these acres as being in the west part of 'No. 15, is quite accurate. It was enough to convey what he had in that lot, not [164] exceeding sixty acres. And as this was the effect of the deed, proof of his intention, whether properly admitted, or not, could do no harm. Next. It is not disputed on the argument that the deed is presumptive evidence of regularity. (Laws 1850, chap. 298, § 83 ; Laws 1866, chap. 820.) The referee holds that no one was in actual occupation at the expiration of the two years. And we see no reason to question the correctness of this finding. (Smith v. Sanger, 4 N. Y., 576; Thompson v. Burhans, 79 N. Y., 93.) Next. The defendant offered to show that he and his grantors had been in uninterrupted possession for twenty-one years immediately prior to the commencement of the action. The objection was made that this was an attempt to set up adverse possession, and that such possession had not been pleaded. Some confusion arises on this point, owing to changes in practice. When, by the Revised Statute, writs of right, etc., were abolished (2 R. S., 843, § 24), and the action of ejectment was not only retained, but was made a substitute for these abolished writs; (2 R. S., 303, § 2) it was provided that the defendant might demur or might plead the general issue only. (2 R. S., 306, § 22.) Hence there could be no plea of the statute of limitations; as it would seem there had been to the writs of right. (3 Bl. Com., 306.) And the defense of adverse possession (2 R. S., 293, 294, §§ 5, 8, 9) was shown under the general issue. The Revised Statutes, so far as I can discover, made no provision as to the pleading of the statute of limitations in personal actions; leaving this to the old rules of practice. And by these rules, generally, but perhaps not always, the statute must have been pleaded in personal actions. In the action of ejectment it is sometimes considered that an adverse possession of twenty years in the defendant is not so much * a bar to the plaintiff’s right of action, as it is an acquisition of title in the defendant. And if such possession shows actual title in defendant, then it might be urged that it ife admissible under a general denial. Since the plaintiff must recover on the strength of his own title. But I do not know that adverse possession of land has. any other effect than to bar an opposing claimant’s- action, under Code Civil Procedure (§§ 365, 368). I know of no statute declaring that the possessor acquires title. . [165] Under the Code Civil Procedure the whole subject is under the head of “Limitations of 'the time of enforcing a civil remedy.” This includes not only actions for the recovery of real property, but also actions on a sealed instrument; (sec. 381) as to which by 2 Revised Statutes (301, § 48) there was only a presumption of payment. And as to all these limitations the sweeping provision is made that the objection can be taken only by answer. (Sec. 413.) I do not see how we can except from that section: that part of the chapter which applies to actions to recover real property. And for these reasons I think the judgment must be affirmed, with costs.