
    Horatio N. Curtis, Appellant, v. Simon Butts, Respondent.
    A mere probability is not enough to enable a party to support a claim to premises, held by another under a conveyance from the same grantees, and which unquestionably embraces them.
    H. & G. H. Humphreys, for the appellant.
    
      L. Farrar, for the respondent.
   Davies, Oh. J.

The plaintiff in his complaint claims to recover ninety-five acres of land occupied by the defendant, described as the south half of the west two hundred acres of lot No. 34, township No. 2, except five acres on the southwest corner of the said south half of said west two hundred acres, and of which the said plaintiff claimed to be the owner. The plaintiff claimed title, as deduced from a deed from William Adams to John Lowe, in which deed the premises were described as lands lying in township No. 2, ■ short range, west of Genesee river, and, a witness on the trial thought, the west part of the lot. This was the testimony of Samuel Owen, the grantee in the next link of the plaintiff’s chain of title. This was a deed from John Lowe and his wife to Samuel Owen, conveying all'that certain piece or parcel of land situate, lying and being at the mouth of the Genesee river, on the west side, lying'in township No. 2, in the short range, in the district of Northampton, and is the one undivided half of two hundred acres of land, as conveyed to the said party of the first part by Dr. William Adams, of Geneva, in the county of Ontario. The defendant claims under a deed from the same John Lowe and wife, dated January 10, 1834, and recorded April 17, 1839, granting and conveying all that certain piece or parcel of land situate, lying and being in the town of Greece, county of Monroe and State of New York, being two hundred acres of the west side of lot No. 34, in the first section of township No. 2, in the short range west of the Genesee river.

It is conceded that this deed contains a concise, accurate and correct description of the lands in question, and under it the defendant was in possession of the premises in controversy. The plaintiff seeks to eject him therefrom, and deduces title from the same John Lowe by means of a deed which does not describe the premises in controversy. The plaintiff has to recover upon the strength of his own title, and cannot upon the weakness of that of his adversary.

We agree with the Supreme Court “ that it is impossible, from the description in this deed, or from the description contained in any referred to in this deed, for any one to say that the land in question is the land granted or intended to be granted by it to Samuel Owen.” The deed does not locate the land conveyed by it on lot Ho. 34, or as a part of that lot. It only locates it as being at the mouth of the Genesee river, on the west side thereof, and is further described as being the one undivided half of two hundred acres of land, as conveyed to Lowe by Dr. William Adams, of Geneva, in the county of Ontario. The plaintiff, to aid the construction to be given to this deed, introduced a partition deed, made between Sir William Pultney and several others, whereby there was set off to John Lowe two hundred acres on the west end of lot Ho. 34, in the first division of lots. A William Adams was a party to this partition deed, but it is very clear that this deed is not the one referred to by Samuel Owen and William Lowe in their testimony. The partition deed is dated October 4, 1804. The deed of William Adams to John Lowe, for two hundred acres, being at the mouth of the Genesee river, being for the same premises conveyed by Lowe and wife to Owen, must have been given at least four years before the partition deed was made and executed.

William Lowe testifies, that William Adams was the father of his mother, that his grandfather resided with his father and mother at Salina, Onondaga county. That he recollected, when his grandfather made out the deed, he went to Onondaga Hollow to get it drawn and acknowledged, and when he came home, his grandfather showed it to him. This was in 1800. That his grandfather read part of it to him, and said to him, that when he became a man, the property would come to him, it was to belong to his father and mother during their natural lives, then it was to fall to him, he paying the other children a certain sum. That it was for a part of an undivided tract of land conveyed to his grandfather by Oliver Phelps. Owen testified, that, after he made the bargain for the land, and they were going off to get it executed by a deed from John Lowe, "William Lowe showed ■ him a deed his father had from Dr, William Adams to John Lowe; it. was a deed they talked of in the neighborhood; they took the deed that day or the next and went to Onondaga Hollow, and had a deed executed to him from John Lowe and his wifefrom that deed.

We therefore can trace back the precise premises, from the deed of Lowe to Owen, conveyed by Adams to Lowe, and by Phelps to'Adams. These were a piece or parcel of .land situate, lying and being at the mouth of the. Genesee river. How by an inspection of the map annexed to the partition deed, it is seen that lot Ho. 34 (the locus m quo) is three or four miles from the mouth of the river, and nearly in the center of the township.

The vagueness and uncertainty in the description of the premises intended to be conveyed by Lowe to Owen, are not helped by the partition deed. As was well remarked by Judge Johnson in the opinion of the Supreme Court, “there is nothing to show certainly that the lands set off and allotted to Lowe, and in severalty in that partition, were the lands conveyed to Lowe and wife by Dr. William Adams. A mere probability is not enough to enable the plaintiff to take the premises in question from the defendant, .who holds them by a conveyance from the same grantees, which unquestionably embraces them. It was for the plaintiff to establish this fact affirmatively.” This clearly he failed to do, and, in the view we take of the testimony adduced on the trial, the Supreme Court put the case more favorably for the plaintiff than the evidence warrants. It seems to us that this view of the facts demonstrates, that the deed from Adams to Lowe, and the deed from Lowe to Owen, did not convey the same premises as those partitioned and set off by the partition deed to Lowe, and by him conveyed to Peter and John P. Bush, Jr., and from whom the defendant derives his title.

1. It is undeniable that the description and location of the premises are essentially different.

2. Adams’ deed to Lowe of the two hundred acres at the mouth of the Genesee river, was made and executed four years before the two hundred acres on the west end of lot Ho. 34 was partitioned and conveyed by the partition deed to John Lowe.

3. It appeared that the land conveyed by Adams to Lowe had been conveyed by Oliver Phelps to Adams: How there is not a scintilla of evidence in the case that the two hundred acres conveyed by the partition deed to Lowe had ever been owned by Phelps, or that he had ever conveyed or assumed to convey the .same to Adams. There is a total failure to identify the premises conveyed by Phelps to Adams, and by Adams to Lowe, and by Lowe to Owen, as the same premises set off," partitioned and conveyed by the partition deed to Lowe, and by the latter to the Bush’s, and from them, by sundry conveyances, to the defendant, as one and the same , parcel of land. On the contrary, the inference is strong they were different. It was fundamental to the plaintiff to establish his right to recover to show their indentity. Hot having done so, it could not be said that he had shown title to the premises conveyed to, and occupied by, the defendant.

Upon this testimony the court properly instructed the jury to find a verdict for the defendant; and the judgment upon that verdict should be affirmed, with costs.

Judgment affirmed.  