
    The Ne-ha-sa-ne Park Association, Plaintiff, v. Aaron Lloyd, Defendant.
    (Supreme Court, Herkimer Special Term,
    November, 1898.)
    1 Beal property—Description not void, for uncertainty.
    A description of a part of a tract of land, embracing 2,550 acres and lying in a portion of a township which forms a right angled, but not an equilateral triangle, and reading “ That tract, piece or parcel of land situate in the county of Herkimer, viz.: nineteen hundred acres to be laid out at the expense of the party of the second part in a square form, as nearly as may be, in the northwest corner of that portion of Township No. 41 of Totten and Crossfield’s purchase, which, lies in the county of Herkimer,” is not void for uncertainty, as, although the 1,900 acres cannot be laid out in the form of an exact square, they may be laid out with mathematical certainty and in the form of a pentagon, which may be considered as a square with one corner cut off.
    2. Same.
    A conveyance of “ Undivided two thousand and eighty-two (2,082) acres of land * * * being what remains of that part of Township No. 41, lying in said county (of Herkimer), after deducting therefrom 408% acres undivided in northwest quarter, paid by A. F. Edwards, in Totten and Crossfield’s purchase,” establishes a certainty of interest, and the identical acres may be made certain by an action of partition.
    
      3. Cloud on title — Plaintiff, in possession of a part, may perfect his title pending the action.
    An owner of tax titles to land, who is in actual possession of a part of it at the time of the bringing of his action to procure the cancellation of clouds upon the title, consisting of tax deeds held by the defendant, may perfect his title before trial, and equity will grant relief upon the facts as they exist at the time of the trial.
    4. Trust for firm creditors — Reverts by lapse of time, the trust not being executed.
    Where over twenty-five years have elapsed since a partner, holding lands for his own benefit and that of his copartners, conveyed the lands to trustees for the payment of firm debts, and to be disposed of by them within one year, and it does not appear by the records or otherwise that these trustees ever conveyed the lands, the presumption is that they never executed the trust, and the lands revert to the granting partner and, under him, to his copartners, their heirs, etc.
    This action is brought for the purpose of obtaining a cancellation of two tax deeds held by the defendant, which the plaintiff claims are void and clouds upon his title.
    Charles E. Snyder, for plaintiff.
    Theo. F. C. Demarest and Harry H. Simpson, for defendant.
   Wright, J.

The land in question consists of about 2,550 acres, situated in the Adirondack forest, and is -that part of Township 41 of Totten and Crossfield’s purchase, which lies in Herkimer county. It all lies in the northwest quarter of said township, except about five acres, which lies in the southwest quarter thereof. The tract is in a triangular form.

The defendant contests the validity of the plaintiff’s title and insists upon the validity of his own. The plaintiff claims under four separate sources of title, called respectively, the Benedict title, the Mead title, the Macomb patent and the Shaw title.

The Benedict title, covering nineteen hundred acres of the land in question, originated in a conveyance from the 'comptroller to Benedict, July 9, 1855.

The defendant claims that this deed is void for uncertainty in the description of the land which the same purported to convey.”

The description reads as follows: “ That tract, piece or parcel of land situate in the county of Herkimer, viz.: nineteen hundred acres to be laid out at the expense of the party of the second part in a square form, as nearly as may be, in the northwest corner of that portion of Township No. 41 of Totten and CrossfiehTs purchase, which lies in the county of Herkimer.”

The portion of said township in which said land is to be laid out is a right angle triangle, but not equilateral. The two lines forming the right angle of the said triangle, are in length respectively, 170.95 chains, and 263.23 chains and the hypothenuse is 313.87 chains. It contains about 2,550 acres, as before stated, and is of such size and shape that it is impossible to lay out therein the said nineteen hundred acres in the form of a square. But the description does not require a square form, and contemplates the contingency of such impossibility and provides for an approximation. It is satisfied with the nearest possible geometrical approximation to a square form, placing every part of the required quantity of land as near as possible to the said corner. This is a mathematical problem, simple and capable of absolute certainty of solution.

It can be solved by making one angle of the approximate square coincident with the right angle of said triangle, and commencing at said right angle, using the two lines of the triangle along equal distances from said right angle, viz.: 160.60 chains for two sides of the required figure, then commencing at the said two points equidistant from said right angle in said lines, and running thence two-lines at right angles respectively, with each of said two sides above given of said figure, towards the hypothenuse of said triangle, until they severally intersect the same. This figure will embrace nineteen hundred acres and will possess five of the eight qualities of a square, viz.: three right angles and two equal sides, and every part of the land therein will be as near as possible to the required corner.

This geometrical figure, although a pentagon, may be considered as a square having one comer cut off. No other figure can be constructed in said triangle which will possess so many of the qualities of a square as this one possesses and embrace the required quantity of land nearest to the said northwest corner.

Said description possesses, therefore, absolute mathematical certainty and the deed is valid. The plaintiff traces from this deed of July 9, 1855, title to itself of an undivided half of said nineteen hundred acres, subject, however, to the Head tax title hereinafter mentioned.

The Mead Title.— After the conveyance to Benedict, the comptroller, on April 23, 1864, executed a tax deed to William K.- • Mead, conveying a larger interest than the Benedict deed in the land in question, being “ the following tract, piece or parcel of land, situate in the county of Herkimer, viz.: Undivided two thousand and eighty-two (2,082) acres of land * ' * * being what remains of that part of Township No. 41, lying in said county, after deducting therefrom 4684 acres undivided in northwest quarter, paid by A. F. Edwards, in Totten and Crossfield’s purchase.”

The defendant objects, to this deed because of uncertainty of description. The whole of that part of said township which lies in Herkimer county is conveyed, except an undivided interest of 4684 acres lying in the northwest quarter of said township, redeemed by one A. F. Edwards.

The redemption of an undivided portion as above recited is provided for by statute. 3 Rev. Stat. (Bird. 2d ed.) p. 3122, § 127.

There is certainty of interest in this conveyance; and, as to the identical acres, it may be remarked that that is certain which may be made certain;” and, certainty can be made simply by an action of partition. The above objection, therefore, is not forceful. Neither are the objections as to the tax proceedings upon which this conveyance is founded forceful. This conveyance is, therefore, valid for all that part of said township above mentioned lying in Herkimer county, except said undivided interest in the northwest quarter, to the extent of 4684 acres, which makes the amount conveyed to be a trifle over an undivided four-fifths interest in the land in question. No title, however, to said undivided 4684 acres is shown tó have ever vested in said A. F. Edwards. The legal force of the above-mentioned clause in the Mead deed with reference to that portion is limited solely, so far as this action is concerned, to a reservation of that amount of land from the said conveyance.

For title to the above-mentioned undivided 4684 acres, the plaintiff falls back upon the Macomb patent, which long antedates the above-mentioned two deeds.

The Macomb Patent.—At the time of commencement of this action, the plaintiff was in actual possession and occupation of a six-acre parcel of said land in question. After the commencement of this action, and before this trial, the plaintiff obtained what is termed the Macomb patent, or Edgar title to the entire land in question, which title goes back to a patent granted by the state to Alex. Macomb, executed by Governor Clinton, February 28, 1787. This title passed from Macomb down through William Edgar, Mrs. Jerome Napoleon Bonaparte and others, to the plaintiff. If the Benedict tax title and the Mead tax title above mentioned were invalid, the plaintiff would take a good title to the whole property in question under this Macomb patent, as against the defendant under his tax deeds hereinafter mentioned. The land conveyed is described in said patent as being “ part of the Indian purchase made by Edward and Ebenezer Jessup and their associates under a license granted to Totten and Crossfield.5’

Objection was raised by the defendant to the introduction of the evidence of the Macomb, or, as otherwise called, the Edgar title, on the ground of incompetency because the deeds were obtained pendente lite. But the plaintiff, being the owner of the above-mentioned tax titles, and being in actual possession of a part of the land at the time of the commencement of the action, had a right to perfect bis title to the whole property before trial.; and equity will grant relief upon the facts as they exist at the time of the trial. Reformed Prot. Dutch Church v. Mott, 7 Paige, 77; Peck v. Goodberlett, 109 N. Y. 189; Pond v. Harwood, 189 id. 120.

The Shaw Title.— This relates to a five-acre parcel in the southwest quarter of said township. Alexander Macomb, above mentioned, executed a mortgage on said five-acre portion with other property, and the land passed by foreclosure on January 21, 1811, into the hands of one Gabriel Shaw, who afterwards conveyed this, with other lands, to John Jacob Astor and others, in trust for the payment of the debts of the firm of Carp, Ellis & Shaw. The deed to said trustees recites that Gabriel Shaw held the land in trust for the benefit of himself and his two partners Ellis and Carp. The assignees were required in the deed to dispose of the property within one year. It does not appear that said John Jacob Astor and others, as said trustees, ever executed any conveyance of said land; and the county clerk’s records wherein the land is situated, show no record of such conveyance. This proof and all the other circumstances, considered in connection with the legal presumption that conditions proved to exist are presumed to continué to exist, authorize the finding that said trustees never executed their trust as to this property; and, over twenty-five years having elapsed since the trust was created, the estate reverted to the assignor, Gabriel Shaw, in his- capacity as trustee for himself and his partners, Ellis and Carp. 3 Rev. Stat. (Bird. 2d ed.) 2617, § 90.

Said Gabriel Shaw died in England in the year 1851, intestate. Twenty-five years had elapsed since said prior trust was created in him; therefore, one-third interest in said parcel reverted to himself, personally, and one-third to each of his said partners, Ellis and Carp, and their respective heirs, devisees or assignees.

The plaintiff has obtained the title which the heirs of Gabriel Shaw owned in said parcel. This would leave a two-thirds interest in said parcel still outstanding, but the subsequent Mead tax title of April 23, 1861, above mentioned, conveys that interest as well as the Gabriel Shaw interest. The plaintiff, being possessed of the above-mentioned Benedict title, the Mead title and the Macomb patent (or Edgar title), is the owner of the lands in question.

The defendant claims title to the land in question under two tax deeds from the state subsequent in date to the plaintiff’s Benedict title and Mead title and the Macomb patent, one of which, the Baker Woodruff deed dated April 17, 1871, purports to convey the land in question, but, in fact, conveys no title, for the reason that the tax for which the land was sold was levied thereon without legal authority. It was a highway tax attempted to be levied under chapter 317, section 2, of the Laws of 1853, as amended by the Laws of 1859, chapter 151.

These statutes confer upon the commissioners therein named, authority to levy a highway tax upon the following-described land (among other tracts), viz.: “Also all of townships four, five, six, seven and forty-one of Totten and Orossfield purchase in the county of Hamilton.”

But the land in question lies in that part of said township 11, of said purchase which lies in Herlcimer county.

The defendant claims that the statute should be construed as if the words “ in the county of Hamilton ” were struck therefrom, thus conferring upon the commissioners authority to levy the tax upon the whole township 41. There is no ambiguity in the wording of the statute; and there is no legal rule of statutory construction which would sustain the defendant’s theory.

The other tax deed under which the defendant claims title (that from the state to the defendant dated April 1, 1884), was declared void by the Appellate Division on a prior hearing of this case. Ne-ha-sa-ne Park Association v. Lloyd, 7 App. Div. 359.

Judgment is ordered in favor of the plaintiff according to the terms of its request as stated in the findings, with costs.

Judgment for plaintiff, with costs.  