
    Garret M. Clute, App’lt, v. The New York Central & Hudson River R. R. Co., Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 22, 1890.)
    
    Ejectment—Deeds—Construction oe.
    Nicholas Clute owned the lot in question with several others. He died in 1833, having devised the lots to Derrick Clute for life with remainder to plaintiff. Derrick in 1859 conveyed said lots to plaintiff and died in 1868. Plaintiff in 1865 deeded them by metes and bounds to the trustees for the Shakers, “ exclusive of one acre, one rood and 32 perches occupied and owned by the railroad.” This was the strip in lot “ K” of which defendant has been in actual possession since 1841 under orders in proceedings to acquire title for railroad purposes. Held, that the deed to the Shakers conveyed whatever title plaintiff had to the premises, including lot K, at the date of the deed, especially as the deed provided for a reversion of the strip occupied by defendant to the Shakers in the event that defendant should remove its tracks, etc.
    Appeal to this court, with a stipulation, from an order of the general term, third department, reversing a judgment in favor of plaintiff entered upon a report of a referee and. directing a new trial.
    The action is ejectment to recover of the defendant the possession of a strip of land located partly in the county of Albany and partly in the county of Schenectady and occupied by the defendant with the track and railroad.
    Upon the trial the plaintiff only sought to recover and did recover a judgment for so much of said strip as is represented between the parallel lines upon a diagram of lot “ K ” put in evidence by plaintiff and frequently referred to as lot “ K ” in the other evidence and proceedings upon the trial This lot with several other lots represented upon said diagram were once owned and occupied by Nicholas Clute who died in 1833. By his will he devised these lots to Derrick Clute for life with remainder in fee to the plaintiff. Derrick Clute, the life tenant, in 1859, conveyed said lots to the plaintiff "and died in 1868. The plaintiff, in 1865, executed a deed containing a description of these lots, lot “ K ” being the last one described in the deed, to Chauncey Copley and Chauncey Miller, as trustees of the United Society, commonly called Shakers. The description of lot “ K ” in this deed embraced the strip or portion of that lot occupied by the defendant as its railroad, and following such description in the deed is the following language in parenthesis, viz.: “ containing 16 acres, 1 rood and 32 perches of land, exclusive of 1 acre, 1 rood and 32 perches occupied and owned by the railroad.” The parenthetical sentence is followed by this language: “ Being the same piece of land devised by the late Nicholas Clute, deceased, to Derrick Clute, Jr., to the extent of a life estate, with remainder to Garret M. Clute, * » *” the plaintiff.
    In 1841, the Schenectady & Troy Bailroad Company took proceedings under chapter 242 of the act of 1836 to obtain title to the strip in dispute for railroad purposes, and after final orders provided by said act, and the payment "of the appraisal of these lands, as is claimed, entered into the possession of them under such proceedings, claiming the title thereto, and has by itself and its successor, the defendant, hold such possession ever since.
    This action was begun in 1873. The referee held that plaintiff was entitled to the possession, and judgment was entered accordingly in plaintiff’s favor. This judgment was reversed upon appeal to the general term, and a new trial ordered.
    
      W. G. Paige, for app’lt; Samuel W. Jaclcson, for resp’t.
    
      
       Affirming 5 N. Y. State Rep., 117.
    
   Potter, J.

This is an action of ejectment to recover the possion of. land, and the plaintiff in order to maintain his action must show that he has the right to the possession of the same, as against the defendant who has been in the actual possession of the same since the year 1841 under orders in proceedings to acquire title to the same for railroad purposes. From the statement of the facts of this case, it is apparent that these defenses to the action might properly arise, viz.: Whether the deed of 1865 from the plaintiff to Copley and Miller does not convey, as between them and the plaintiff, the latter’s title to the premises to them ? Whether the defendant did not obtain title to the premises under the proceedings taken pursuant to chapter 242, Laws of 1836, for that purpose in 1841, and whether the defendant has not obtained title to the premises through its possession taken under such proceedings adverse to plaintiff and continued from 1841 to the time of the commencement of this action in 1873 ?

The general term held, and I think correctly, that the deed from plaintiff to Copley and Miller by force of the language and terms employed in it conveyed whatever title the plaintiff had to the premises at the date of the deed. The deed assumed to grant and convey without reservation, exception or limitation, the lands described therein by metes and bounds. Following such description, the deed states the quantity of land embraced within the metes and bounds theretofore set forth in the deed. That amount is the same amount contained in lot “ K.” But the defendant was occupying and had been since 1841, a strip of land through lot “ K.” Hence to make the statement of the amount of land strictly accurate, it was necessary to exclude from such quantity, the quantity occupied by the defendant for its railroad. This construction of the deed is confirmed by other considerations, within and without, the deed. If the deed did not or was not intended to convey any title or right in the strip to Copley and Miller, where was there any occasion or propriety in providing for a reversion of the land occupied by the defendant to Copley and Miller in the event that defendant should remove its tracks or cease to operate its road laid upon the strip.

The term reversion signifies a return to a pre-existing or former state or place. The only pre-existing state or relation which Copley and Miller could occupy in respect to this land when defendant should cease to occupy it was that conveyed to them by the plaintiff’s deed. The rule of construing deeds requires that they be construed most'Strongly against the grantor and the reasonableness and justice of such rule is never more manifest than when the grantor is, as in this case, a lawyer. Again if it was not the intention to grant this strip, why make any reservation of his claims for use and occupation or for damages for withholding it against defendant If a grant does not carry the principal subject, it would hardly carry its incidents.

It seems to me very clear that the effect and purpose of this deed was to divest the plaintiff of all estate that he had in the strip of land in question, and to invest Copley and Miller with the same as far as lay in the plaintiff’s power at the date of his deed, and as there was some question doubtless in the minds of the parties whether such deed would be effectual while the defendant was occupying such strip adversely, provision was intended to be made in the deed that Copley and Miller should have the land or it should revert to them without any additional instrument or costs when the defendant ceased to occupy it. This scheme was the most practicable under the circumstances to give them what every purchaser would naturally desire, viz.: this lot entire. But the plaintiff practically urges upon the consideration of the court that it matters not though the language of his deed and the circumstances surrounding the same indicate a-grant of the premises to Copley and Miller, and an intention to make such grant, yet the law would not permit him to do so. 2 R. S., 739, § 147; Dawley v. Brown, 79 N. Y., 390. Let us see whether that contention will stand the test of consideration.

Assuming with the plaintiff, that the proceeding to acquire title for railroad purposes was wholly void, he was the owner of the remainder in fee of lot K,” and. that portion of it occupied by the defendant. As such remainderman, the plaintiff was not in possession in fact, and was not entitled to the possession of the premises until the termination of the precedent life estate, which did not occur till the year 1868," some three years after the date tif plaintiff’s deed to Copley and Miller. Hence, the land in question was not, at the date of the deed from plaintiff to Copley and Miller, held adversely to the plaintiff. Until the precedent estate is terminated, giving the remainderman the right of possession, no possession can be adverse to the remainderman. Christie v. Gage, 71 N.Y., 189, 193; Grout v. Townsend, 2 Hill, 554; Clarke v. Hughes, 13 Barb., 151.

Having reached the conclusion that the deed, by its terms, conveyed the lands in question to Copley and Miller, and that there was nothing to defeat its operation, and the plaintiff having thus divested himself of title to the premises in question, there is no occasion to examine or decide the other questions discussed upon the argument.

The order of the general term should be affirmed and judgment Absolute be awarded against the plaintiff, with costs.

All concur.  