
    James Albert Harris et al., Resp’ts, v. Monroe H. Oakley, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 20, 1891.)
    
    1. Deed—Boundabies.
    One H., being the owner of premises divided by a board fence, the land on one side of which he used as a garden, conveyed to defendant all the premises, excepting and reserving therefrom a certain number of feet front and rear from the line of an adjoining owner, “ being the piece of land occupied as a garden by said H,” and thereafter conveyed the premises to plaintiffs excepting the part sold to defendant. The line mentioned in the deed would extend beyond the fence, field, that the reservation of the garden lot expressed the intention of the parties, and that the putting of the defendant in possession of all of the lot north of the fence became a practical location of the boundary line.
    2. Same—Evidence.
    As the deed contained two conflicting descriptions of the land intended to be reserved, the declarations and acts of the grantor at the time of its delivery, in reference to the delivery of possession of the land, were admissible on the question of intent.
    Appeal from a judgment of the general term of the supreme court, fifth department, affirming a judgment entered upon a decision of the Monroe circuit on a trial without a jury.
    
      W. H. Whiting, for app’lt; Albert H. Harris and Horace McGuire. for resp’ts.
    
      
       Reversing 26 N. Y. State Rep., 824.
    
   Haight, J.

This action was brought to recover the possession of certain real estate situate in the city of Rochester.

It appears that one Truman Hulin -was the owner in fee of a parcel of land bounded on the north by Brooks avenue; on the east by what was formerly the Genesee Valley canal, now occupied by the Western Hew York & Pennsylvania railroad; on the south by land owned by George Harrison, and on the west by Genesee street. The lot was divided by a board fence running through to the canal nearly at right angles with Genesee street, which had existed for many years, and the land south thereof was used by Hulin for a garden. On the parcel north of the fence there was a hotel with sheds, barn, ice house, chicken house, etc. On the' 10th day of January, 1888, Hulin conveyed to the defendant. and his father by warranty deed all of the premises above described, “ excepting and reserving therefrom 137 feet, front and rear, measuring from George Harrison’s north line on Genesee street; and also 137 feet from George Harrison’s north line on the Genesee Valley canal, being the piece of land occupied as a garden by said Sulin." And on the 7th day of May thereafter he conveyed to the plaintiffs the whole of the premises first mentioned, excepting and reserving that portion thereof conveyed to the Oakleys. The fence forming the northern boundary of the garden lot upon Genesee street is 137 feet north of Harrison’s line, but in the rear, upon the line of the canal, 137 feet from Harrison’s line extends 19-¡- feet north of the fence. The triangular piece embraced within this description, north of the fence, is the parcel of land in controversy.

The trial court found as facts: “ Sixth. That at the time of the conveyance from said Hulin to the plaintiffs * * * said Hulin was not in possession of the triangular piece of land mentioned in the complaint, but the same was in the possession of the defendant, and had been since the 10th day of January, 1883, and the same has never been in the possession of the plaintiffs, but has always, since said 10th day of January, 1883, remained in the possession of the defendant.” And again: “Ninth. That at the time of the execution of said deed to defendant, said Hulin put defendant in possession of all that portion of said premises north of said fence, and defendant has ever since been, and still is, in possession of the same, and was so in possession of said premises at the time of the execution of said deed to the plaintiffs.”

It appears to us that upon these findings the conclusion of the trial court cannot be sustained. As we have seen, the fence formed the northern boundary of the garden lot. One of the reservations embraced in the deed was of the garden lot; and if, as found by the trial court, the grantor Hulin, at the time of delivering the deed to the defendant, put him into possession of all of the premises north of. the fence, it would seem to indicate that the reservation of the garden lot expressed the intent of the parties, and that the putting of the defendant into possession of all of .the lot north of the fence became a practical location of the boundary line between them.

In the record before us there appears to be some misapprehension on the part of the court below as to the competency of paroi evidence. We quite agree with the learned general term that the declarations of a grantor before the execution of a deed tending to establish a boundary other than that made by the deed is not competent. That the effect of such testimony might accomplish a conveyance of land by paroi in contravention of the statute of frauds. We will go even farther, and say that where in the description of premises in 'a deed courses, distances and monuments are given, the premises must be located according to the deed, and all paroi evidence of the declarations and acts of the parties of an intended different location is inadmissible as contradicting or varying the deed. But there is another rule to which we must call attention, and that is, that where the description contained in the deed is so vague, obscure or conflicting as to leave the intent of the parties uncertain, the declarations and acts of the parties may be shown by paroi. Clark v. Wethey, 19 Wend., 320 ; Vosburgh v. Teator, 32 N. Y, 561; Wood v. Lafayette, 46 id., 484; Stout v. Woodward, 5 Hun, 840 ; affirmed, 71 N. Y., 590 ; Donahue v. Case, 61 id., 631.

In the case before us we have two conflicting descriptions of the land intended to be reserved by Hulin from the defendant’s deed. One reserves 137 feet from the north line of Harrison’s land upon the canal. This as we have shown would extend nineteen and one-half feet north of the fence onto the lot previously occupied in connection with the hotel buildings, and the line so formed would pass diagonally through a barn or shed standing next to the fence used in connection with the hotel. The other description contained in the deed reserved only that part which was used by the grantor for a garden, which was bounded on the north by the fence to which allusion has already been made. The question is which of these lines was intended. The fence is not mentioned in the deed. Had it been it would perhaps have become a monument or object which would control the determination of the question, for the rule is that courses and distances ordinarily must yield to natural or artificial monuments or objects. But the word “ garden ” is used, and it appears that the garden is bounded by the fence, and whilst it may not indicate a definite line as accurately as would a fixed monument, it appears to us, taken in connection with the other facts, to be sufficient to raise a question of fact as to the intent of the parties, and that the declarations and acts of the grantor at the time of delivering the deed to the defendant in reference to the delivery to him of the possession of the land may be properly received in evidence.

The judgment of the general term and that of the trial court should be reversed and a new trial ordered, with costs to abide the event.

All concur.  