
    Burke et al. v. Jackson.
    
      (Supreme Court, General Term, Third Department.
    
    July 7, 1890.)
    For majority opinion, see 10 N. Y. Supp. 577.
   Mayham, J.,

(dissenting.) This is an appeal from a judgment entered upon a verdict for the plaintiffs in an action of ejectment, and from an order denying a motion for a new trial on the minutes. The action was to recover the possession of a triangular piece of land in the city of Amsterdam, one foot wide, fronting on Grove street, and extending southerly about 96 feet to a point in the division line between plaintiff and defendant. The complaint alleged in substance that the defendant unlawfully removed the division fence so as to take in this triangular piece of land, and thereby wrongfully got possession of the triangular piece of land, and retained possession of the same, and withholds the possession from the plaintiffs. The answer denies the allegation of the complaint, alleges ownership of the land, and sets up adverse possession and practical location of the line in dispute. The case shows that on the 8th day of March, 1848, John L. Crane and others conveyed by deed to Benjamin C. French land in Amsterdam village bounded as follows: Northerly by Grove street; easterly by lot conveyed to Daniel Lefferts; southerly by lots owned by Waterman Sweet; and west by lands1 of Benjamin 0. French, —200 feet deep from center of Grove street, and 53| wide on said street. On the 28th day of February, 1851, Daniel C. French conveyed by deed to Richard Burke land in Amsterdam bounded as follows: Northerly by Grove street; easterly by Daniel Lefferts’ lot; southerly by Waterman Sweet’s lot; and westerly by a lane. On the same day Richard Burke executed and delivered to French a mortgage containing a recital that it was for a part of the purchase money of said premises, describing the premises as situate in the village of Amsterdam, and bounded as follows: Northerly by Grove street; easterly by Daniel Lefferts’ lot; southerly by Waterman Sweet’s lot; and westerly by a lot of the party of the second part. The lot hereby conveyed is 200 feet deep from center of Grove street, and 51 feet wide on said street. Burke died intestate in 1864, and in 1878 his children and heirs at law conveyed the premises to his widow, Margaret Burke, with the following description: Northerly by Grove street; easterly by a lot formerly owned by Daniel Lefferts; southerly by land formerly owned by Waterman Sweet; and westerly by a lane. Margaret Burke died in 1888, and by her will devised these lands to the plaintiffs, who at the time of her death were in possession of the land devised. The defendant derived his title from Richard C. Snell, by deed dated April 1,1856, who derived his title from George Sanford and wife, by deed dated February, 28, 1839. The land in the deed from Snell to defendant was bound northerly by Grove street; easterly by James W. Kline’s lot; southerly by a stone wall; and westerly by Burke’s lot as the same was inclosed. In 1879 Margaret Burke, the plaintiff’s testatrix, erected a new house on her premises, and in that year or the next erected a fence on what is claimed by the plaintiffs as the true line. In 1886 the defendant constructed a new fence between him and the plaintiffs, and the plaintiffs claim that fence was placed on their land so as to inclose on the defendant’s side the triangular piece in dispute. The line fence between the parties had been divided. The northerly end from Grove street, southerly along the land in dispute, was maintained by the defendant, and the southerly end by the plaintiffs, and those through whom they derive title. Most of the testimony in the case was directed to the question of the true location of the line between the parties, and, upon that subject, resort was had to oral and documentary evidence, and the principal questions of law arising on this appeal grow out of the ruling of the learned justice in the receipt and rejection of evidence. There was a sharp conflict of evidence over the questions of the original location of the fence between the parties, and over the disputed question of the removal of the same from its original position, at the time the defendant erected the new fence, in 1886, and this court is urged by the defendant to reverse the determination of the jury upon the disputed question, on the ground of the alleged preponderance of evidence in favor of the defendant upon that subject, and reference is made to certain fixed, permanent, and visible monuments, such as an elm tree, and the location of the old fence, in reference to it, which is urged as unmistakable evidence that the new fence was placed on the same position as the old one, which it is urged has been there for more than 20 years. But the evidence upon this point is not quite clear from conflict, and, on the part of the plaintiffs, it is urged as evidence of the change of the location of the fence that the defendant, in erecting the new one, removed a wall located by plaintiffs on their lands to retain the earth in position on their lot, and located the fence on the location of the same.

On the whole, we think the evidence too conflicting- to justify an interference witli the verdict of the jury upon this disputed question of fact, as there is some evidence to support their finding, unless some well-settled principle of law was violated in the admission or rejection of evidence. J.t is insisted on the part of the appellant that it was error to receive in evidence, under the defendant’s objection, the mortgage given by Richard Burke to Benjamin S. French at the time of the conveyance by French to Burke. The mortgage was given to secure the purchase money of the land described in and conveyed by the deed, and was so expressed on the face of the instrument, and bore even date with the same. The deed gave the names of the adjoining owners to the land conveyed, but did not give.the extent or distance on Grove street. The mortgage gave the same abutting owners, and therefore necessarily described the same premises, and contained the additional description of the extent of the line on Grove street. The mortgage was an instrument executed at the same time as the deed, and between the same parties, and under certain circumstances would, as between theparties to both instruments, operate osa defence of the grantee’s title under the deed. The question raised here, on the admissibility of this mortgage as evidence, is unlike that in Armstrong v. Du Bois, 90 N. Y. 95, referred to by the learned counsel for the defendant. In that case it was sought to extend the provisions of a deed, explicit in its terms, which expressly excluded the lands described in the lease which was sought to be read as a part of the deed; and the court says: “The language-of the deed is clear and needs no interpretation. The deed is susceptible of no construction which will carry the premises in controversy,”—and, for these and other reasons not existing in the case at bar, the lease in that case was held inadequate and inadmissible. In this case the identity of the land covered by the deed and mortgage admits of no doubt. In this case the court says: “The lease is susceptible of a reasonable construction which will exclude the premises in controversy, and the deed is not susceptible of a construction which will include them.” In Craig v. Wells, 11 N. Y. 315, also relied upon by the defendant on this point, the court says: “The deed, therefore, from Moses Phelps to his son William, upon which the questions in this case arise, is to be construed by-itself, although the circumstances under which it was executed, and, among them, the simultaneous execution of the other deed and bonds, may no doubt be resorted to for the purpose of aiding in its construction, so far as there may seem to be anything equivocal in its provisions.”

The only thing equivocal in the deed in the case at bar is its failure to give the distance on Grove street, and the mortgage was offered to remove the doubt on that point. In Dusenbury v. Hulbert, 59 N. Y. 544, it was expressly held that a deed conveying the title to land, and a-mortgage given for the purchase money at the same time, must be taken as one instrument, and read together as one act, and the court says: “The deed and Bowen mortgage executed at the same time are to be construed together as one instrument. They constitute an indorsable act.” Again, it is urged by the plaintiffs that the mortgage was competent evidence as a declaration of Burke, the mortgagor in possession, and through whom the plaintiffs claim, as characterizing his title and actual.occupancy under it. The declarations of the owner of real property in possession are competent as characterizing the extent of the possession. Abeel v. Van Gelder, 36 N. Y. 516.

It was no error, therefore, under the circumstances of this case, to allow the mortgage in evidence. “The rule is that declarations of this character are admissible if made.while the party so declaring is in possession of the premises in dispute,” and it is not essential that they should have been made on the land. Smith v. McNamara, 4 Lans. 169; Swettenham v. Leary, 18 Hun, 286. Nor do we see any legal objection to the evidence of conversation between Sarah J. Burke and plaintiffs with Jackson, the defendant. It is quite true that such conversation could not be substituted for deeds in proof of title to land, nor could they establish title in one party or the other, but, as they related to the location of the line in dispute between them, while they were respectively in the possession of the lands, we think them competent as bearing, slightly perhaps, upon the location of the line. On the whole case I do not see that any substantial error was committed in the admission or rejection of evidence, and the jury having disposed of the disputed question of fact, there is no ground for interference by this court. It follows that I cannot concur in the opinion of my brethren for a reversal in this case.  