
    John E. Blackman, Pl'ff, v. Elsworth L. Striker, Def't.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 16, 1892.)
    
    Ejectment—Reservation in deed as to burial ground.
    In the apportionment of lands among the heirs of a decedent it was provided that the one who drew the lot containing the family burying ground should, in any future deed conveying the same, reserve said burying ground for the purpose of burying with liberty of access thereto. The one who drew said lot afterwards conveyed it to defendant’s grantor, the deed reserving to ‘' the heirs of ” said decedent all of said burying ground, “ with free ingress, egress and regress ” to bury the dead. Meld, that there was no reservation of the fee of said burying ground, but only of the easement of burial; that the fee passed by the deed and that plaintiff as the grantee of the heirs could not maintain ejectment.
    
      Motion by the plaintiff for new trial upon exceptions ordered to be heard in the first instance at the general term.
    
      George Hoadly, for motion;
    
      George Bliss, opposed.
   Van Brunt, P. J.

This action was brought against the defendant Striker and his tenants to recover possession of a lot of land at the southwest corner of Ninth avenue and Fiftieth street in the city of New York.

The facts in relation to the question involved are substantially undisputed, andaré as follows: John Hopper, who died in 1778, was the owner, at the time of his decease, of a farm in the out ward of the city of New York, and by his will, dated October 12, 1778, arid proved in August, 1779, he devised all his land in the out ward equally to his sons Matthew, John, Andrew and Yellis, his daughter, Jemima Horne, and the four children of his deceased son, Wyssel Hopper. He ordered that after his decease the farm should be divided into six equal portions by competent and disinterested persons, one of which parts should belong to his said son Matthew, one to his said son John, one to his said son Andrew, one to his said son Yellis, one to his said daughter Jemima, and one to the four children of his deceased son Wyssell. The devisees were to determine by lot which parcel should belong to each in severalty after a survey map and a chart or map in partition had been prepared. Accordingly in 1782 a map in partition was prepared, and before drawing for their allotments the devisees entered into an agreement as to the construction of lanes through the property; the removal of fences, and the disposition of certain buildings, and in respect to a family burying ground which was located on the farm and embraced within lot two. The recital as to the burying ground is as follows: “ Whereas on the lot numbered two there is erected a burial ground now enclosed with a good fence, that the same forever hereafter remain, continue, and be for the family burying ground, and that whoever shall draw said lot of land and shall hereafter sell that, the said burying ground shall be reserved in the deed to the purchaser for the above named laudable purpose of burying, with full liberty to pass and repass as occasion shall require.” Matthew Hopper, the eldest son, drew lot number two, within which was situated the said burying ground. All the devisees conveyed to Yellis Hopper, to Andrew Hopper, to John Hopper, and to John Horne, the husband of Jemima, the several allotments drawn by them. But there is no evidence of any deed to the minor children, nor of any deed to Matthew Hopper. In 1783 Matthew Hopper conveyed to John Hopper and to - his heirs and assigns forever the lot of land which had been assigned to him, together with all and singular the garden, trees, ways, paths, passages * * * emoluments and hereditaments, whatsoever, to said lot of land belonging or in anywise appertaining, or which now or formerly have been accepted, reputed, taken, known, used, occupied or enjoyed, to or with the same as part or parcel thereof, or any part thereof, saving, excepting and reserving unto the heirs of said John Hopper, deceased, and to their and each of their heirs out of this present demise all that burying ground now in fence, consisting of forty-eight feet square, parcel of said lot of land, and commonly called the family burying ground, with free ingress, egress and regress into, on and from the same, to bury the dead, etc.

Without mentioning in particular the method, to whatever rights were acquired by John Hopper in this plot of land included in the burying ground the defendant Striker succeeded, and he, having taken possession of the same, the plaintiff claiming under conveyances from the heirs of Matthew Hopper, brought this action in ejectment.

The only question which it is necessary to consider upon this motion is the effect of the alleged exception in Matthew Hopper's deed to his brother John. A solution of this question depends upon the construction of the conveyances, and the evident intention of the parties in the provision therein contained.

That the burial ground in question was included in lot number two, and was so understood by the heirs of John Hopper, and that the title thereto was intended to pass by the allotment to Matthew Hopper, seems to be conclusively evidenced by the language of the agreement entered into between all the parties interested in the land of John Hopper, deceased. The agreement recites that whereas on the lot number two there is erected a burial ground * * * that whoever shall draw said lot of land, and shall hereafter sell that, the said burying ground shall be reserved in the deed to the purchaser for the above mentioned laudable purpose of burying, etc.; this language clearly showing that the title to the land embraced in the burying. ground went with lot No. 2. Consequently, if Matthew Hopper obtained the title to lot No. 2, he also obtained the title to the fee of the burying ground. That this was the understanding is further evidenced by the deed from Matthew to John Hopper, by which lot No. 2 is conveyed to John Hopper by particular description; the deed further continuing: “saving, excepting and reserving unto the heirs of said John Hopper, deceased, and to their and each of their heirs, out of this present demise all that burying ground now in fence, consisting of 48 feet square, parcel of said lot of land, and commonly called the family burying ground, with free ingress, egress and regress unto, on and from the same, to bury the dead, etc.”

By this clause there was a clear attempt to make a reservation in favor of the hqirs of a common ancestor for the purposes of burial. There was evidently no intention but what the grantee was to hold possession of the lot in question, subject to the easement of burial in favor of the heirs of the original John Hopper. There was no intention to reserve the fee, hut simply the easement of burial for the purpose of carrying out the agreement entered into by the heirs of said John Hopper. And that this was the intention was further evidenced by the fact that the reservation was not of anything to the grantor, but to others as well as himself; in fact, of all who came under the designation of heirs of John Hopper, deceased. If there had been any intention to except the fee of the burial ground from the grants, the exception would have been to Matthew Hopper, the grantor, and there would not have been an attempt to reserve a right to others, this being the evident intention as manifested by the conveyances which passed and the language used. It is clear that the plaintiff, from the conveyances from the heirs of Matthew Hopper, took no right to bring this possessory action upon the ground of a title superior to that of the defendant Striker, who, as the successor of the grantee in Matthew Hopper’s deed, was entitled, at least, to' the possession of the premises in question.

The exceptions should be overruled, and judgment ordered for defendant, with costs.

Barrett and O’Brien, JJ., concur.  