
    (82 Hun, 227.)
    KENNEDY v. FARLEY.
    (Supreme Court, General Term, Third Department.
    December 4, 1894.)
    1. Boundaries—Establishment by Agreement.
    Where adjoining owners submit to arbitration the question as to the true boundary line between them, the award is sufficient to establish the lino as between the parties, their heirs and privies.
    2. Deed—Estate Conveyed.
    One J., in possession of the land under contract of purchase, conveyed his interest, by quitclaim deed, to defendant’s grantor, who afterwards received a warranty deed from the owner of the legal title, and then conveyed to defendant, describing it as the same land conveyed to the grantor by J. Sold, that defendant took only the estate that his grantor derived from J.
    Appeal from circuit court, Essex county.
    Action by Charles Kennedy against James Farley for trespass. From a judgment entered on a verdict directed by the court in favor of defendant, plaintiff appeals.
    Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Hand, Kellogg & Hale (Richard L. Hand, of counsel), for appellant
    Smith & Finn (Francis A. Smith, of counsel), for respondent.
   HERRICK, J.

This is an action against the defendant for trespass in entering upon what the plaintiff alleges to be his premises, and cutting timber therefrom. The court directed a verdict in favor of the defendant, and from the judgment entered thereon .the plaintiff appeals to this court It appears that the plaintiff, in 1809, purchased a parcel of land known as “lot No. 97,” and entered into the possession thereof; his grantor at the time of the execution of the deed being in possession of the premises. Adjoining the lot purchased by him was a lot in the possession of one William Jackson. A controversy having arisen between them as to the boundary line between the two lots in 1877, by a written agreement they referred it to arbitrators to fix the line. The arbitrators, by a written instrument under their hands and seal, fixed and determined the line between the two lots, and provided that each of said parties should build their respective share of the line fence on said line, and provided that the fence theretofore built by the plaintiff might be removed to the line established by the arbitrators. Both parties consented to the location of the line as established by the arbitrators. Their award establishes the line of division between the two lots about four rods and eleven feet north of the fence erected by the plaintiff before that time. The plaintiff had theretofore built and maintained the east half, and Jackson the west half, of the line fence between them. After the line was fixed by the arbitrators, the plaintiff moved the easterly half of the fence northward to the new line; the westerly half remained in its old location. The opening thus caused by the easterly part being removed, the westerly part remaining in its old location, was closed by a short cross fence between the two. The fence remained in this position until 1881, when the defendant came into possession of the premises theretofore occupied by Jackson, and shortly thereafter moved the westerly half of the fence up to the line established by the arbitrators, thus establishing a continuous fence between the two lots, upon the line established in 1877. In the spring of 1892 the defendant moved the west half of the fence four rods or more north' of the arbitrators’ line, upon what the plaintiff alleges to be his property, and cut the timber therefrom, which removal of the fence and cutting of timber constitute the trespass complained of.

The proof by the plaintiff of a deed to him of lot No. 97, his grantor being at the time of the execution of that deed in possession, I think, is sufficient to establish at least a prima facie title to said lot. The submission to arbitration of the question as to what was the true boundary line between his lot No. 97 and the lot occupied by Jackson, and the award of the arbitrators under such submission, were sufficient to establish that boundary line, at least as between himself and Jackson and Jackson’s heirs and privies. Vosburgh v. Teator, 32 N. Y. 561; Wood v. Lafayette, 46 N. Y. 484.

But the defendant claims that he is not bound by the act of Jackson; that he is neither an heir of, nor privy in estate to, Jackson. He claims that Jackson was merely in possession of the premises under a contract to purchase, and that he derives his title, not through Jackson, but through other parties, who owned the fee of the land. I have some doubts as to the legality of the evidence by which the nature of Jackson’s possession was proved; but, assuming it to be properly admitted, it would appear that he was in possession of such property under a contract to purchase the same from one Mary L. C. Biddle, the owner thereof, and that, at about the time of his death, he owed a balance upon the purchase price of |405. Whatever his rights may have been, he transferred them all by a quitclaim deed dated December 31, 1878, to the J. & J. Rogers Iron Company. In January, 1880, he died. On the 31st day of May, 1880, Mary L. C. Biddle executed a warranty deed to the J. & J. Rogers Iron Company of the same premises, describing them as being the same premises contracted by her to one William Jackson, and by said Jackson deeded to the party of the second part; and the J. & J. Rogers Iron Company, by a deed dated April 13,1887, deeded the premises to the defendant, Farley. Upon these facts the defendant claims that, at the time that Jackson was in possession of such premises, Mary L. C. Biddle was the owner in fee thereof; and that she conveyed such premises to the J. & J. Rogers Iron Company; and that the J. & J. Rogers Iron Company, in turn, conveyed to him; and that, therefore, he is not. an heir or privy of William Jackson; .and that William Jackson, being merely a contractor in possession, could not enter into any agreement of arbitration that would bind the legal owner. At first blush his position would seem to be correct, but the real facts as disclosed here do not, I think, ¡sustain the defendant’s contention. Jackson, being in possession of the premises under a contract to purchase the same, had rights equitable, if not legal, therein. Those rights were -transferred by him to the Rogers Iron Company, accompanied with all the obligations that he had imposed upon them. One of the rights that he undoubtedly possessed was to have a deed of the property upon paying the balance of the purchase price, and shortly after his death that deed appears to have been given by Mary L. C. Biddle to his grantee, the Rogers Iron Company; the consideration therein expressed being considerably less than the testimony shows was the balance due by Jackson, shortly before or at the time of his death. In that deed the contract between Mary L. C. Biddle and Jackson is expressly referred to. Thus, the Rogers Iron Company, by these two deeds, became possessed of the equitable interest of William Jackson, and of the legal estate that he was to receive under his contract upon the payment of the purchase price of said premises. I am strongly inclined to think that the Rogers Iron Company took the premises subject to all estoppels and conditions that Jackson himself was subject to, and took no more than Jackson could have conveyed had he received a deed in fee pursuant to his contract with Mary L. O. Biddle. However, this latter proposition is perhaps not necessary to be determined for the purpose of deciding this case. As we have heretofore seen, Jackson was bound by the articles of arbitration; and, by the award of the arbitrators, all that he could convey was the lot whose boundary was established by said arbitrators. The quitclaim deed that he gave to the Rogers Iron Company did and could convey no premises north of the boundary line described in the áward. That is all the estate that the Rogers Iron Company derived from William Jackson, and that is the estate, and all the estate, that was conveyed to the defendant. Whatever interest the Rogers Iron Company had in the premises, it limited its conveyance thereof by what it received from Jackson; for in the deed of the Rogers Iron Company to the defendant the premises conveyed to.the defendant were described as follows:

“All that certain piece, or parcel of land, etc., containing one hundred andi sixty acres, more or less, and. is the same land conveyed to the party of the first part by William, Jackson and wife by deed dated December 31, 1878.”

The only title that, the defendant has is through this deed, and he is concluded by its terms. His chain of title goes direct to William Jackson, and the amount of land that he received and its boundaries are limited by what Jackson could and did convey in his conveyance to the Rogers Iron Company. It follows from this that he was not entitled to move the fence and enter upon the premises in dispute, or to cut timber therefrom, and that his acts in so doing were trespasses.

Each party in the court below having requested the court to direct a verdict upon the evidence, and the damages being agreed upon at $20, the judgment is reversed, and judgment directed for the plaintiff for $20, with costs, and the costs of this appeal. All concur.  