
    P. Elbert Nostrand, Resp’t, v. Mary T. Knight et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed December 2, 1890.)
    
    1. Appeal—Reversal by general term on the facts.
    In an action to compel specific performance of a contract to convey real estate, the description contained in the agreement was as follows: “All that certain grist mill and water power known as the 0. B. Knight grist mill property, including a tract of land at Round Pond, together with all rights and privileges to the waters of Round Pond that the late C. B. Knight possessed in his lifetime, or belonging to said property, subject, however, to the existing leases of the present tenants now on said premises ” Defendants claimed that the description covered but one acre and plaintiff that it covered eight acres. Upon the trial at the special term the court rendered a judgment in favor < f defendants, which judgment was reversed upon the facts by the general term. Held, that the general term was authorized to reverse the judgment of the trial court as being contrary to the weight of evidence.
    8. Same.
    The clear intention was expressed in the contract to sell, and convey the "0. B. Knight grist mill property,” with the lands connected therewith and tenant houses erected thereon, for the purposes of a flouring mill. And this would naturally include not only the land upon which the mill buildings were situated and the necessary yards and structures connected therewith, but also the mill pond, race-way, tail-race, water rights and other iniispenable appurtenances of such a mill actually possessed by the vendors.
    3. Same.
    It was manifest from the evidence that since 1863 the mill building, pond and eight acres, with the casern' nts connected therewith, have been a distinct, separate and recognized parcel of land, and that such eight acres have never been subdivided, and that the defendants intended to convey the eight acres by the contract.
    Appeal from judgment of the supreme court, general term, second department, reversing judgment for defendant, entered upon the decision of the court at special term without a jury.
    
      M. N. Kane and K. A. Brewster, for app’lts; Wm. W. MacFarland, for resp’t.
    
      
       Affirming 22 N. Y. State Rep., 121.
    
   Buger, Oh. J.

This action was brought by the plaintiff to compel the specific performance by the defendants of a contract to sell and convey to one A. S. Murray certain real estate in the county of Orange,- in this state. The plaintiff was the assignee of the contract, and the property to be sold was described therein as follows: “All that certain grist mill and water power known as the 0. B. Knight grist mill property, including a tract of land at Bound Pond, together with all rights and privileges to the waters of Bound Pond that the late 0. B. Knight possessed in his lifetime, or belonging to said ¡property. Subject, however, to the existing leases of the present tenants now on said premises.” This contract was negotiated and executed on behalf of the defendants in 1887, by Phillips & Wells, their authorized agents.

The controversy is over the question as to the identity of the property intended to be sold under the description of the “ C. B. Knight Grist Mill property; ” the defendants claiming that it covered, in addition to certain rights of flowage and the land and water rights at Bound Pond, the fee of less than one acre of ground covering a small part of the pond at its -outlet and the buildings thereon; and the plaintiff, that it embraced about eight acres of land covered by the pond and mill buildings and some upland adjoining in addition to the land, water rights, and easements of flowage pertaining to the property at Bound Pond and elsewhere. While it will not be exactly accurate, yet it will be sufficiently so for the purposes of this description, to refer to their respective claims, one as embracing a one acre parcel and the other as covering eight acres. It will also be unnecessary hereafter to refer, particularly, to the property located at Bound Pond, as no dispute exists as to the character or extent of that parcel as described in the contract.

Upon the trial at special term the court rendered judgment in favor of the defendants, holding that the phrase “ the C. B. Knight Grist Mill property” covered, in addition to certain rights of flowage, the acre of land alone. Upon appeal this judgment was reversed upon the facts by the general term, and the defendants appealed to this court upon a stipulation.

This appeal presents but a single question, which is whether, upon the facts, the general term was authorized to reverse the judgment of the trial court as being contrary to the weight of evidence. The question is one purely of fact, and is to be determined by a consideration of the evidence in the light of the rules which govern appellate tribunals in reviewing such questions. The general term had jurisdiction to review the conclusions of the trial court, both upon the facts and the law, and we cannot reverse its determination, unless upon examination we conclude that there was no evidence to support -it, or that there was such a preponderance of evidence in favor of the conclusions reached by the trial court as would have constituted error of law for it to have found otherwise than it did. The evidence does not show to us any such preponderance ; but, on the contrary, we are convinced that the decided weight of evidence is with the plaintiff. If we refer to the contract, we find that a clear intention is expressed to sell and convey the “ 0. B. Knight Grist Mill property,” with the lands connected therewith and tenant houses erected thereon, for the purposes of a flouring mill. Uo ambiguity arises over the location of the property, for there is but one property at Monroe, Orange county, which fills the description, and the only difficulty arises when an attempt is made to define its boundaries. In the absence of clear and definite language in the contract upon this point, extraneous evidence becomes necessary to' determine the question. Certain inferences may, obviously, be drawn from the language of the contract, bearing strongly upon the question in-valved in the case. Among them is the fact that a grist mill and-all such property connected with it as was necessary to carry on the business of a flouring mill was intended to be sold. This would naturally include not only the land upon which the mill buildings were situated and the necessary yards and structures-connected therewith, but also the mill pond, race way, tail race, water rights and other indispensable appurtenances of such a mill.

If the land upon which any of these appurtenances were located belonged to the owner of the mill property it would be inferred, under such a contract, that the title thereof was intended to be.transferred upon a sale without reservations. If the appurtenances owned by the vendors consisted of easements alone, such as the right of entry upon and flowage over the lands of others, an inference would probably not be permissible that the title of such lands-was also intended to be conveyed. In such a contract there would be no presumption that the vendors intended to convey any other title than that actually possessed by them. The contention of the defendants, however,' falls far short of a disposition to convey so much even of the mill property as they actually owned, for they seek to withdraw from the operation of the deed tendered by them the title to the lands under the larger portion of a pond covering four or five acres, which belonged to them and was essentially necessary to the operation of a mill in that location. The deed tendered by the defendants in fulfillment of their contract included only an insignificant portion of this land, and it is difficult to see why any was included if the claim that a water power only was to be sold is to be supported. The concession that the-title to any such lands was included in the contract necessarily involves the conclusion that they were all intended to be embraced therein so far as the defendants’ title extended.

We have also been unable to see how the language of the contract can be given its natural effect and meaning if the defendants’ contention be sustained. That instrument, in express terms, reserves the rights of the tenants on the property, in existing leases, from the operation of the conveyance provided to be given; evidently implying that otherwise the title of the property covered by such tenant houses would be transferred by a conveyance of the property described in the contract As we understand the evidence, the tenant houses are all situated on land outside of the-one-acre parcel.

If this be so, the clause referred to will, under settled rules of construction, be deprived of any meaning or effect if defendants' construction shall prevail. A reference to the history of this mill property, as disclosed by the proof, seems to us to remove all doubt as to the identity of the property intended to-be conveyed by the contract. That shows that this property Was originally owned by one Daniel 0. Knight as a part of his homestead farm, and was first separated therefrom in 1862, when it was devised to his son, Chauncey B. Knight, under the following description: “ The following described premises, being part of his homestead farm and premises,” certain lands, containtaining eight acres, described by metes and bounds and including the grist mill and - saw mill, and also certain premises and rights of flowage at the outlet of Bound Pond, and certain rights of flowing lands in connection with the mill-pond embraced in such description. It appears from the maps put in evidence that this description, in addition to the lands at Bound Pond, which were about one mile distant, embraced about eight acres of land, including that covered by the mill-pond and certain uplands adjacent thereto, upon which were located the mills and buildings connected therewith and some tenant-houses. This map was delivered by the defendants to their agents, Phillips & Wells, when the property was placed in their hands for sale, and was marked as being “ mill property and water-power at Monroe, Orange county, N. Y., owned by C. B. Knight” This property was owned and occupied by 0. B. Knight after it was devised to him for a period of eighteen years, when he died, and the defendants, as his heirs at law, became vested with the title. In 1872 Chauncey B. Knight mortgaged this property (with an inconsiderable additional parcel of land), under the description given to it in Daniel C. Knight’s will, to one Jesse Woodhull, and this mortgage for $5,000 was outstanding and unpaid at the time the contract of sale was made, and its payment was assumed as a part of the consideration price by the plaintiff. In 1882 the defendants placed this property in the hands of Phillips & Wells, real estate brokers in New York city, for sale, under a power of attorney, in which it was described as “ all that certain tract of land with water-power and mill in village of Monroe, known as Knight Flouring Mill, water-power,” and the price fixed therefor was limited to the minimum sum of $15,000. The defendants, at this time, placed in the agents’ hands the map heretofore referred to, describing by metes and bounds the property intended to be sold, and that map not only embraced the eight acres, but this land was then pointed out by one of the defendants to the agents as the property intended to be sold by them. The agents, for a series of years, were unsuccessful in their efforts to find a purchaser for such property, and finally in November, 1886, wrote the defendants in relation to the further disposition of the property, and received the following reply: “In reply to yours of 18th, would say that I understood that my contract with you had expired. There has been no change in the property. We continue to rent it If you desire to keep it on your list without expense to me, you may do so. 0. T. Knight, Att’y.”

In 1887, Phillips & Wells again wrote the defendants suggesting a reduction in the selling price of the property, and saying that if this was done they were hopeful of effecting a sale. Thereupon a new power of attorney was executed on behalf of the defendants to Phillips & Wells, wherein the property was described in the terms used in the contract, and the agents were authorized to accept $10,000 for that property. No suggestion was made by either party that any material change in the description or extent of the property offered for sale was intended to be made, and the power of attorney was executed by the defendants as it was drawn by their agents. Its sale was finally effected to the plaintiff by the agents without any suspicion on their part that the property was different, in any respect, from that originally placed in tlieir hands for disposal.

The principal defendant, 0. T. Knight, testifies, explicitly, that in January, 1882, Le placed in the hands of “Phillips & Wells for sale the property in Monroe which was devised by my grandfather to my father,” and then described it as the “ mill property and water power at Monroe, Orange county, N. Y., owned by 0. B. Knight.” No satisfactory explanation is now given by him why the property described by the defendants as the 0. B. Knight mill property in 1882, and consisting of eight acres of land, should, in 1887, be considered to embrace only one acre of land.

The agent Wells also testifies that the eight acres described in./ the map given to him in 1882 by the defendants, with other property referred to, was understood to be the property constituting the “ C. B. Knight Grist Mill Property,” and the map was, obviously, delivered to him for the pur-pose of defining the property and enabling him to make a sale thereof. It is manifest from this evidence that since 1862 the mill buildings, pond and eight acres with the easements covenanted therewith have been a distinct, separate and recognized parcel of land, and that such eight-acres have never been -subdivided so that any particular part has been known as the C. B. 'Knight mill property, separate therefrom. It cannot, we think, be a matter of the slightest doubt, under the evidence, that the defendants intended to embrace the eight acres by the designation of the C. B.- Knight Grist Mill Property,” or but that the plaintiff’s assignor supposed he was. purchasing all of -the property which at any time went to make up a complete and operative flouring mill establishment. If there be any evidence which conflicts with this view, it is of a. character so slight as hardly to merit the description of proof. The defendants, while expressly conceding the fact that the description contained in the original power of attorney embra'ced the eight acres in question, now contend that when the land was again placed with Phillips & Wells for sale in 1887, a different description was given of the property which materially changed its effect. There is no foundation, in the evidence, for this claim, and in fact it is conclusively rebutted by a comparison of the two descriptions and the positive testimony of the defendants’ agents. The difference in phraseology of the descriptions of the property in the several powers of attorney is very slight, while the legal effect is nndistinguishable upon any reasonable interpretation of the language. The circumstance that the change in description was obviously made by the defendants’ agents upon their own printed blanks and without any idea that they were deviating in any material respect from the description of the property originally offered for sale, is manifestly entitled to much weight Even with such change the last description conforms almost exactly with the description of the-property endorsed upon the map accompanying the first power of attorney. Aside from the claim that the map referred to was not exhibited to the plaintiff's assignor when the contract was made, and the argument attempted to be based thereon that he could not have relied upon it in making the purchase, there is but little evidence, and such as there is is of a very inconclusive character to establish the fact that the deed tendered the plaintiff was a performance of the provisions of the contract. We regard the circumstance that the map was not exhibited to the purchaser at the time of sale as of but little significance, in view o£ the fact that the defendants’ agents supposed the land offered for sale embraced the eight acre parcel, and, presumably, so^ informed the purchaser. This purchaser was not called as a witness and his absence was unexplained. But, leaving that fact to have its greatest force, it does not materially impair the strength of the case made by the plaintiff. The defendants utterly failed to show that any defined parcel of land less than the eight acres was .ever located, known or distinguished as the “ C. B. Knight Grrist Mill property.”

Several witnesses for defendants have testified, in substance, that no part of the eight acres was used in connection with the grist mill property, except the acre of land referred to; but this testimony was given in the face of the conceded fact that the mill pond covered in the neighborhood of about four out of the eight acres referred to, and had always been used in connection with the mill. Under such circumstances the evidence given was entitled to but little weight and it seemed only to impair the effect of other testimony given by them. The same witnesses also gave evidence that in their opinion or understanding the “ O. B. Knight Grrist Mill Property ” included only the mill buildings and a small part of the pond and excluded the tenant houses referred to in the contract, and covered only about one acre of land. There is no pretense in their evidence that the boundaries to the mill property described by them had ever been the subject o£ any survey or actual location, except as the starting point and one or two lines following coincided in some respects with the initial lines of the description contained in Daniel 0. Knight’s will. The defendants’ deed after following these lines until the mills and yards immediately connected therewith were embraced immediately deflected from all other recognized and established lines and ran directly to the mill pond, and after crossing it so as to include only a small parcel of the land under water, ran immediately to the place of beginning, covering less than one acre in all, and excluding nearly seven acres of land and almost the entire mill pond from the description thus given. The lines indicated in this description are purely arbitrary and are supported by no evidence whatever. They were never indicated by monuments, fences or visible signs of distinction, and had never been described in any survey, or distinguished by acts of occupation or user as disconnected from other portions of the eight acre parcel. There does not appear in the case any satisfactory evidence to support the lines laid down in the tendered deed, and aside from the purely conjectural opinions of the witnesses, there seems to be no fact proven which materially impairs the claim made by the plaintiff.

"We are, therefore, of the opinion that the order of the general "term should be affirmed and judgment absolute ordered for the plaintiff, with costs. ■

All concur.  