
    HENRY MUHLKER, Appellant v. JACOB RUPPERT, Respondent.
    
      Vendor and vendee—Vendee's claim of title in third person not sustained— Party walls may be regarded as monuments—Certainties in some particulars, of a description, with other considerations, will override a given distance at which a point of beginning is placed—New avenue, East, and Madison avenue; a description in 1873, referring to the easterly line of Madison avenue may be regarded as referring to a line which was the easterly line of New avenue, East. The maxim “falsa demonstratio quee non nocet ” applied.
    
    1st. The controversy here arises between a vendor and vendee as to whether the vendor or a third party had title to a part of the land contracted to be sold, to wit: a strip five feet in width lying east of and adjoining a party wall, the question depending on what particular piece of land was included in tire description contained in a mortgage, under a foreclosure of which the vendee claimed that the third party had title; and this question depending on the point whether the mortgage description carried the easterly line of the property intended to be mortgaged only to the center of a party wall, or to a point five feet easterly therefrom, Held, that, as the mortgage description contained two certainties, to wit: that the easterly and westerly lines ran partly through party walls, and that tire width of the property was 18 feet front and rear, and as the mortgagee in foreclosing his mortgage had taken the position that the property mortgaged was that lying between the two party walls, the distance from a certain point given in the description as the point of beginning, which would carry the easterly line beyond the easterly party wall, to. the extent of the five feet in question, and to a point where there was no party or other wall, and make the westerly line thirteen feet west of the easterly party wall, at which point there was no party or other wail, must yield to the two certainties (the party walls in this resqiect being regarded as monuments) ; and the point of beginning must be deemed to be at the middle of the westerly party wall which would exclude from the mortgage premises the five feet in question.
    2d. The point of beginning given in the description in the mortgage (which was made March G, 1873) was 298 feet east from the corner formed by the intersection of the easterly line of Madison avenue with the southerly side of 124tli street, which would bring the westerly line five feet east of the westerly party wall, but that distance from the easterly line of an „avenue formerly called New avenue, East, would bring the westerly line to the center of that party wall, Held, that under a possible construction of chapter 220 of the Laws of 1872, which enacted that the piece of ground then known as New avenue, should thereafter be known and constitute part of Madison avenue, the old easterly line of New avenue, might, without any misuse of words be called the easterly line of Madison avenue, and thus the five feet in question would not be included in the mortgaged premises. But if the words Madison avenue do not necessarily refer to New avenue it is a case of falsa demonstratio qua¡ non nocet.
    
    8d. Under the above holdings, Held, the vendee could not refuse to perform his contract, on the ground of a defect in the vendor’s title to the five feet in question. .
    Before Sedgwick, Ch. J., and Truax, J.
    
      Decided March 6, 1888.
    Appeal by plaintiff from, judgment for defendant entered upon, findings and. conclusions of the court at special term.
    The facts appear in the opinion.
    
      Theall & Beall, attorneys, and Austin G. Fox, of counsel for appellant, on the questions considered in the opinion, argued:
    I. The defendant failed to show that the intention of the parties to the mortgages was to mortgage any land except the lot and house thereon known as No. 68 East One Hundred and Twenty-fourth street. As to the mortgage to Grace T. Smith: The center line of the westerly party wall of No. 68 East One Hundred and Twenty-fourth street was in fact 298 feet east of an avenue which in fact existed, whether the avenue’s name be Madison or New.
    The only “ corner formed by the intersection of the easterly line of Madison avenue with southerly side of One Hundred and Twenty-fourth street,” was that which in fact then existed and which had existed ever since the avenue called “New” had been open'ed for travel. The two party walls described as inclosing a part of the lot No. 68 East One Hundred and Twenty-fourth street were the only party walls that satisfied the description, and the use of the term party walls, moreover, excluded any possibility of an intention to mortgage the land now in question, for that entire lot was then vacant.
    II. As there was no other lot than No. 68 East One Hundred and Twenty-fourth street to which the description in the mortgages by party walls could possibly apply, those landmarks determined absolutely the eastern and western boundaries of the mortgaged property. Norton v. Hughes, 17 Abb. N. C. 287. The intention of the parties always controls. Drew v. Swift, 46 N. Y. 204, 207; People v. Storms, 97 N. Y. 364; Brookman v. Kurzman, 94 Ib.; Robinson v. Rime, 70 Ib. 154; Seaman v. Hogeborn, 21 Barb. 398.
    III. The defendant failed to show that the effect of chapter 22 of the Laws of 1872, was to widen New avenue, and that irrespective of the intention of the parties they must be held, conclusively, to • have referred, not to the easterly line of the avenue as it actually existed, but to the imaginary line, marking what would have been the easterly side of Madison avenue, if it had in fact, been widened five feet. (1.) The mere passage of the act could not, of itself, operate to widen New avenue, five feet, and the legislature did not intend that it should. The legislature has no power by its mere fiat, to divest owners of the title to property and transfer it to the city, even for a public use. People ex rel. v. Commissioners of Highway, 53 Barb. 70. (2.) The mere passage of the act of 1872 made no change in the width of the New avenue between One Hundred and Twentieth and One Hundred and Twenty-fourth streets, and the blocks between Fourth avenue and Madison avenue are still 405 feet long. So far as the Act of 1872, chapter 220, relates to these blocks, it only changes the name of New avenue to Madison avenue and has no other effect. It does not extend the line of Madison avenue or does it widen New avenue. No proof other than this act is introduced to substantiate the claim of defendant that Madison avenue has been widened. Can it be contended that by the Act of 1872 New avenue was widened five feet, and these five feet taken from the abutting owners on the street ? People v. Comm’rs of Highway, 53 Barb. 70.
    IV. But even if there was a doubt as to the property covered by the two mortgages, there is an estoppel of record against any claim that could be made under the mortgages to any part of the land in question. (1.) Both mortgagees alleged in their complaints for foreclosure that Houston and Fealey conveyed the mortgaged premises to one McCarty, who afterwards conveyed the same to one Magits, and sets out the recording of the deed. (2.) But in the deed made by Houston and Fealey, the lot was described as that “ lot, piece or parcel of land, with the building thereon,..... being known as street No. 68 East One Hundred and Twenty-fourth street.” (3.) The mortgagees themselves became the purchasers, and they and their grantees are estopped of record to claim that the mortgages ever covered any property except that known as No. 68 East One Hundred and Twenty-fourth street. It is difficult to suggest a case of a more thorough estoppel than that which .results from these proceedings. The mortgages became merged in the judgments, and the judgments were based upon the allegations that the mortgaged property was the lot, with the building thereon, known as No. 68 East One Hundred and Twenty-fourth street. There is no proof of pretense that there was any building upon the plaintiff’s lot at the date of the deed to McCarty.
    
      Ashbel P. Fitch, attorney, and George F. Mott, of counsel for respondent, on the • question considered in the opinion, argued:
    I. The defendant relies on the statutes and the lines of Madison avenue as they existed in 1873, when these mortgages were made. These statutes are as follows: By an act passed April 16, 1867 (chapter 403), all that piece of land 80 feet wide between and parallel with Fourth and Fifth avenues from south side of Eighty-sixth street to the north side of One Hundred and Twentieth street, the east line or side being 400 feet west from the west side of Fourth avenue, and the west „ line or side being 420 feet east from the east side of Fifth avenue, and, being an extension of Madison avenue, is declared to be one of the streets, etc. By act passed May 4, 1869 (chap. 560), all that piece of land 80 feet wide, between and parallel with Fourth and Fifth avenues from north side of One Hundred and Twenty-fourth street to Harlem river, the east line or side being 400 feet west from west side of Fourth avenue and the west line or side being 420 feet east of east line of Fifth avenue, and being an extension of Madison avenue, is declared to be one of the streets, etc. By act passed April 12, 1872 (chap. 220), the piece of land 80 feet wide between the east and west lines of Madison avenue extended north from south line of One Hundred and Twentieth street to the north line of One Hundred and Twenty-fourth. street, now called New avenue, East, shall hereafter be known as and form part of Madison avenue. Or in other words, by these three statutes, Madison avenue 80 feet wide is extended from Eighty-sixth street to the Harlem river. The line is extended in each case. By the first statute the lines of the avenue were run up to One Hundred and Twentieth street, being 400 feet west of Fourth avenue-. By the second statute the line was run from One Hundred and Twenty-fourth street to Harlem river 400 feet from Fourth avenue, and by the last statute the line of the avenue (of course as it existed at One Hundred and Twentieth street, to wit: 400 feet west of Fourth avenue) was extended north from One Hundred and Twentieth street to One Hundred' and Twenty-fourth street. The plaintiff argues, however, that this last ■ statute, by an unfortunate wording does not actually extend the avenue, but simply “describes” it as extended, and changes the name, but by reference to the other two statutes it will be seen that the same form of wording is used in all three statutes, and there can be no doubt of the intent of the legislature to extend o Madison avenue.
    II. The distance from the avenue governs, although the description speaks of party walls. Smythe v. McCool, 22 Hun 595.
   By the Court.—Sedgwick, Ch. J.

The action is for the specific performance of a contract of the defendant to buy and of the plaintiff to sell real estate.

The contract describes the land as beginning at the southwesterly corner of Fourth avenue, and running thence westerly and along the southerly line of One Hundred and Twenty-fourth street eighty-nine feet, etc. The defendant does not claim that the plaintiff is not entitled to any part of the eighty-nine feet, but objects that the plaintiff has no title to a piece bounded by about five feet of the westerly end of the eighty-nine feet.

. Upon the trial it was agreed “ that the only question or issue to be tried is, as to whether by reason of the two mortgages mentioned in the answer, or either of them, and the proceedings taken thereunder, the title of the plaintiff to a portion of the premises to be conveyed by him has become defective to such an extent as to justify the defendant in refusing to accept such title,” etc.

As the respondent before us rests the objection upon the terms of one only of the two mortgages, there will be no further reference made to the other.

That mortgage was made by persons named Houstoun and Feely under whom the plaintiff holds title, and was made before the conveyance of the title which plaintiff claims. The mortgage was to Grace T. Smith, and was dated March 6,1873. Its description was: “ Beginning at a point in the southerly side of 124th street, distant easterly 298 feet from the corner formed by the intersection of the easterly line of Madison avenue with the southerly side of 124th street, at or in front of the middle of a party wall, and running thence southerly and parallel with Madison avenue and partly through the center of said party wall, 100 feet and 11 inches to the center of the block, thence easterly on the center line of the block and parallel with 124th street, 18 feet, thence northerly and parallel with Madison avenue and partly through the center of a party wall, 100 feet and 11 inches, to the southerly side of 124th street, and thence westerly along the southerly side of 124th street 18 feet to the place of beginning.”

The defendant contends that the easterly line of Madison avenue, given in the deed, is at a certain place, and is intersected by the southerly line of 124th street, and measuring from such intersection two hundred and ninety-eight feet, and then 18 feet as the north dimension of the property mortgaged, the conjoined measurements will,, include the piece of five feet in dispute.

This position assumes, in agreement with the plaintiff, that the easterly line of the land as described by the mortgage, is conterminous with the westerly line of land to which the plaintiff had a valid title, and it also assumes that the mortgagor and mortgagee intended by their description, that the land mortgaged should be eighteen feet broad at both ends.

This latter assumption is no doubt correct, and for a like reason the land intended by the description was one hundred feet and eleven inches in length. These matters are certainties. It was equally certain from the description alone, that the intention was to mortgage a piece of land, the sides of which should run in part through party walls.

It was proved on the trial that as matter of fact, there were party walls, or rather that there were walls, assumed in the examination to be party walls, eighteen feet from each other, and that the easterly one of these was about eighty-nine feet from Fourth avenue.

My difference from the learned judge below is at this point. He was of opinion that the description did not show where the westerly party Avail was. It seems to me, that if one should go upon the land, attempting to apply the description and bearing in mind that it was certain that the parties meant land eighteen feet wide at the north, and situate betAveen the centers of two walls, he would find that the end of the measurement of two hundred and ninety-eight feet easterly from the line of Madison avenue, as defendant claims it Avas, Avould leave him five feet east of the westerly party wall and thirteen feet west of the easterly party wall, Avith no other wall further east, as the land stood at the time of the mortgage. Or if the land were viewed as it noAv is, any wall easterly of the east party wall of the mortgage would be excluded, by the necessity of remaining at the end of íavo hundred and ninety-eight feet plus eighteen feet. The result would' be that as the line of eighteen feet must end at the east party line, its starting point AArould necessarily be the west party Avail.

These certainties, viz., that the lot was to be eighteen feet wide on One Hundred and Twenty-fourth street, and also that the line of these eighteen feet was between two Avails that can be identified as monuments, are corroborated by the position taken by the mortgagee, in foreclosing the mortgage. She proceeded to foreclose the mortgage, and gives the description of the property mortgaged, by averring the description as made in her mortgage. She further averred that the mortgagors had delivered to one McCarty “ a deed of conveyance of the mortgaged premises hereinbefore mentioned, subject to the mortgage aforesaid, wherein and whereby the said McCarty assumed and agreed to pay said mortgage. She also averred that McCarty delivered to one Magits a deed of conveyance of said mortgaged premises, subject to the mortgage hereinbefore mentioned, wherein and whereby said Magits assumed and agreed to pay said mortgage,” etc. The mortgage specified where these deeds of conveyance are recorded. In these deeds the description is: “ Beginning at a point on the southerly side of 124th street distant 89 feet westerly from the corner formed by the intersection of the westerly line of 4th avenue (as widened) with the southerly fine of 124th street, running thence southerly and parallel with said 4th avenue (as widened) and part of the way through the center of a party Avail, to' the center line of the block, thence westerly along said center line of the block eighteen feet, thence northerly again, parallel Avith 4th avenue, as widened, and part of the Avay through another party wall, to the southerly line of 124th street, thence easterly along said southerly line on 124th street to the point of beginning, subject, hoAvever, to certain mortgages iioav on said premises, amounting in the aggregate to $10,000, which mortgages the party of the second part assumes and agrees to pay.” These mortgages of $10,000 Avere the one being foreclosed and another, to Avhich it has been said there is no call to refer.

Two things thus clearly appear—that the mortgagee understood that the measurement from Madison avenue Avas intended to end at the west party Avail, eighteen feet west of the east party wall, and that the east party wall was eighty-nine feet west from Fourth avenue.

It may be said here that Fourth avenue had been Avidened some years before the mortgage under examination.

Attention should now be given to the claim of defendant, that tAvo hundred and ninety-eight feet from Madison avenue was the intended point of beginning, and therefore as it is further claimed no land west of that point could have been intended to be conveyed.

ft is a rule applicable to records, contracts and conveyances composed of detailed particulars, that if there is certainty as to all the particulars save one, which is not harmonious with the rest, the meaning is to be inferred from the certain particulars, and the other is to be bent to them, or even rejected, if it is not a modification or limitation of the others. Brookman v. Kurzman, 94 N. Y. 272; Danziger v. Boyd, 53 Super. Ct. 398.

The case is not out of the rule because the particular to be subordinated, speaks as to the point of beginning. There may be a mistake or inadvertence as to that, as well as to any kind of specification.

In this case it has been before suggested that taking the two party walls as monuments, and it being certain that the parties intended that the land should be eighteen feet on 124th street, between those party walls, there was no uncertainty as to the land mortgaged being west of the land of the contract. This might justify an entire rejection of the first statement as to the point of beginning.

But it will appear upon an analysis of that statement, that certain parts of it are consistent with the rest of the description. Instead of measuring from what is assumed to have been Madison avenue, but beginning at the other end of the line at the center of the west party wall, west two hundred and ninety-eight feet, a point would be reached five feet west of the assumed easterly line of Madison avenue. This point would be on the easterly side of a street called New avenue, down to 1872. In April 12, 1872 (chap. 222), the legislature recognizes the earlier existence of this New avenue, but describes it as eighty feet wide. The act says the piece or parcel of land eighty feet wide lying between'the easterly and westerly lines of Madison avenue extended northerly, etc., now called New avenue, East, shall hereafter be known as and form part of Madison avenue. The general situation was complicated in a manner that cannot be further alluded to for want of time. It, however, naturally would give rise to a doubt whether New avenue, per se, was identical with Madison avenue as intended by the act, or whether New avenue with an easterly addition was. In March, 1873, the old line of New avenue might be called the line of Madison avenue without any misuse of words, if one possible construction of the statute were taken as the correct one, viz.: a piece of land lying between the two sides of Madison avenue, but not extending from one side to the other, and extended from the southerly line of 120th street to the northerly line of 124th street, which piece of land is now called New avenue, East, shall hereafter be known as Madison avenue and form part of it, from the south to the north, in like manner and like effect as if the same had been originally laid out for a public street or avenue. There is no indication of any intention to take private land to make the new part of Madison avenue, or to place the line of the eighty feet east or west, of the old lines of New avenue.

Without going farther, it may, I think, properly be said that if the words Madison avenue do not accurately refer to New avenue it is a case of falsa demonstratio qum non nocet.

I am of opinion that the judgment should be reversed, and a new trial had, with costs to abide the event.

Truax, J., concurred.  