Judevine v. Goodrich

Kellogg, J. The reservation in the deed executed by the plaintiffs to the. defendant’s son, under whom the defendant justifies the trespass complained of, is qualified by the limitation of the time within which the plaintiffs were to take the property reserved off from the premises conveyed, and should have no other or greater effect than would result from a license to remove the property within the same period of time. The reservation is of a part of the realty, and on condition that the plaintiffs should remove the property reserved by the 1st April, 1853. The intention of the¿>arties, as collected from the deed and the character of the transaction, was that the plaintiffs should'have no right to the property after, the 1st April, 1853, unless they removed it from the premises before that day. If the properly was removed by that time, it belonged to the plaintiffs; but if not removed by that time, their right to it was gone. This seems to be the natural and obvious construction of the deed. When, therefore, the plaintiffs entered upon the premises -after the 1st April, 1853, for the purpose of removing the stone off from the premises, they had lost all right to the stone, unless what took place between the plaintiff Judevine and the defendant, previous to the expiration of the time limited by the deed for the removal of the stone, should be regarded as being virtually equivalent to a license to allow the stone to remain there after the 1st April, 1853, with the privilege to the plaintiffs to remove them from the premises at any time before the defendant should begin to use or cultivate the land in the spring. If the defendant gave to the plaintiffs such a license and privilege, their right to the stone continued the same after as before the 1st April, 1853, as it is found by the referee that, before the expiration of the time within which this privilege was to be exercised, [22] the defendant removed the stone from the premises, and appropriated the same to his own use. Although the plaintiffs, at the request of the defendant, executed the deed to his son, Justus D„ Goodrich, yet it is found by the referee that the defendant purchased and paid for the land ; and if the defendant gave to the plaintiffs this license and privilege, these facts, and the defendant’s connection with the case, would, as we think, estop him after the plaintiffs had acted upon the license, from setting up against them his own want of authority to give it to them. In reference to this question of license, the referee reports that the plaintiffs claimed (and Judevine testified) that about the middle of March, 1853, Judevine applied to the defendant and 'suggested to him that it might be difficult to remove all the stone before the first day of April, and requested him to enlarge the time for their removal until, the defendant should begin to cultivate or use the land in the spring, and that the defendant assented to the request; that the defendant, admitting this interview and request, testified that he neither acceded, nor refused to accede, to this request, and that, in fact, he made no answer to it; and that the parties were quite positive in their testimony upon this matter. It appeared that some three months previous to this interview, the defendant had consulted counsel in respect to his right to the stone if they were not removed before the first day of April. The referee reports that, upon the testimony, he was of opinion that the defendant, at the time Judevine requested him to enlarge the time limited by the deed for the removal of the stone, “ did not propose to accede to the request, or say that which would stimulate the plaintiffs to exertion to remove the stone before the first of April, but used such indifferent language that Judevine honestly inferred that the time when the stone were removed was a matter of indifference to the defendant, and acted upon such impression.” If the defendant, as he claimed and testified, made no answer to Judevine’s request, his passiveness or'silence would not discredit the presumption of his acquiescence in that request, even if it would not, under the circumstances of the case, be considered as amounting to an express assent' to it. We do not doubt that the issue made upon the testimony was susceptible of a more distinct resolution than the [23] referee has furnished in his report; but we regard the fail-import of the report as being substantially this: — that the “impression” upon which Judevine acted was not only produced by the “ indifferent language ” which the defendant used in reply to the application made to him for the extension of the time, but also that the. “ indifferent language ” so used by the defendant was used with the design of producing this “ impression.” The natural interpretation of the report in this respect is that although the defendant did not intend to accede to the request, he did design that Judevine should act upon the impression that htf acceded to it, and that Judevine had a right, from the indifferent language used by the defendant, so to understand him, and to act upon such impression. If the defendant designed that Judevine should so understand him, he was bound to the same extent (even though the words used were susceptible of an entirely different construction) that he would have been if he had used express words of assent to the request, provided that Judevine in fact did so understand him, and acted under that impression. In that ease the defendant’s “ indifferent-language,” though capable of an interpretation consistent with his concealed mental purpose, should be considered with reference to the sense and meaning which he intended to convey, rather than by the sense and meaning which he intended to conceal. The referee’s finding in favor of the plaintiffs’ right to recover must have rested upon this view of the case. . The. objection that the plaintiffs can not support.an action of trespass for the removal of the stone by the defendant and the appropriating of the same to his own use, if it was well founded, does not arise on the exceptions in this case. Unless it distinctly appeared that this objection was made in the county court, it could not become legitimately the subject of an exception to the judgment rendered in that court. Judgment of the county court in favor of the plaintiffs affirmed.