
    George Egelhoff and Elise Egelhoff, his Wife, Plaintiffs, v. George Simpson, Defendant.
    
      Description in a deed beginning a certain number of feet from a street corner where the street is subsequently .widened, thus lessening the distance, and a deed is thereafter giren containing the same description contained in the former deed, the title is unmarketable.
    
    An agreed statement of facts recited that a deed executed by Peter Reid to John Gill, dated January 16, 1858, and recorded June 27, 1860, described certain premises as beginning at a point on the southwesterly side of Fourteenth street, 557 feet 10£ inches northwesterly from the westerly corner of Fourth avenue and Fourteenth street; that thereafter Fourth avenue was widened 40 feet, so that the premises were only 517 feet 10i inches from said corner, and that subsequently, in 1867, Gill executed to one Williams a deed containing the same description as that contained in the former deed to Gill, but containing no reference to that deed; that Williams executed to Bradford in 1870, and Bradford executed to one Crolius in 1875, deeds containing the same description as that contained in the deed to Gill; that in 1882 Bradford executed a deed to Crolius which recited that it was given to correct an error in the description of the previous deed to Crolius, arising from the widening of Fourth avenue, and described the premises as beginning 517 feet 10J inches from the corner of Fourth avenue and Fourteenth street “as now laid out; ” that in 1890 the plaintiff acquired Crolius’ title and entered into possession of the premises; that in 1898 he contracted to convey the premises to the defendant, who refused to complete his purchase upon the ground that the plaintiff’s title was unmarketable.
    It appeared that from the date of the deed from Reid to Gill until the day after the recording of the deed from Gill to Williams, Gill was not the owner of any land in the block referred to except the premises in question; that no conveyance by him of any land on that block was recorded during that period except the deed to Williams; and that from the date of the deed from Reid to Gill, clown to the date of the confirmatory deed by Bradford to Orolius, no conveyance was recorded conveying the premises in question save those referred to.
    It did not appear, however, that any of the parties concerned in the devolution of the title were ever in possession of the property excepting the plaintiff, nor did it necessarily appear that at the date of the deed from Gill to Williams, Gill was not the owner of any lands on the southwesterly side of Fourteenth street 557 feet 10£ inches northwesterly from the corner of Fourth avenue and Fourteenth street.
    
      Held, that the plaintiff’s title was not so far free from reasonable doubt that the court would require the defendant to accept it.
    Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.
    
      Albert Ii. Moore, for the plaintiffs.
    - Edward M. Perry, for the defendant.
   Hirschberg, J. :

The controversy relates to the marketable quality of plaintiffs’ title to real estate, which real estate the defendant has agreed to purchase. Peter Beid conveyed to John Gill by deed dated January 16, 1858, and recorded June 27, 1860, certain premises situated in the block bounded by Third and Fourth avenues and Fourteenth and Fifteenth streets in Brooklyn, described as follows: “ Beginning at a point on the southwesterly side of Fourteenth street, distant five hundred and fifty-seven feet, ten and one-lialf inches northwesterly from the westerly corner of Fourth avenue and Fourteenth street, running thence northwesterly along Fourteenth street twenty feet; thence southwesterly and parallel with Fourth aven tie ninety-two feet and eight inches ; thence southeasterly and nearly parallel with Fourteenth street twenty feet; and thence northeasterly and parallel rvith Fourth avenue ninety-three feet and two inches to the place of beginning.”

Fourth avenue was thereafter widened by adding 40 feet to its northwesterly side by virtue of the provisions of chapter 299 of the Laws of 1861, amending chapter 335 of the Laws of 1860, and the work was completed, and the pavement, curb and sidewalk laid before March 7, 1867. As a result at that date the point of beginning of the premises conveyed by Beid to Gill was distant only 517 feet 10-¡- inches northwesterly from the westerly corner of Fourth avenue and Fourteenth street instead of 557 feet 10-f-inches as theretofore. On March 7, 1867, John Gill and wife conveyed to Harriet Williams by deed dated that day and recorded March 14, 1867, premises described by the same words as the description contained in the deed from Eeid to Gill, but no reference is made to that deed. Harriet Williams conveyed to Joseph Bradford by deed dated May 5, 1870, and Bradford conveyed to Clarkson Crolius by deed dated March 1, 1875, the property by the same description as in the deed to Gill. On July 10, 1882, Joseph Bradford executed to Clarkson Crolius a deed recorded July 15, 1882, reciting that it was given to correct an error in the description contained in the previous deed between the same parties arising from the widening of Fourth avenue 40 feet on the northwest side, and conveying and confirming to the grantee premises described substantially as in the deed from Eeid to Gill, excepting that the point of beginning is stated to be “ distant five hundred and seventeen (517) feet and ten and one-half (10-J) inches northwesterly from the point of intersection of the southwesterly line of Fourteenth street with the northwesterly line of Fourth avenue, as now laid out.” On May 15, 1890, the title of Clarkson Crolius in the premises so described was vested in the plaintiff George Egelhoff by virtue of a deed dated that day and recorded June 19, 1890, whereupon he entered into, and still has, possession of the property.

On June 18, 1898, the plaintiff George Egelhoff contracted with the defendant to sell the premises described in the last-mentioned deed, and to convey to the latter the absolute fee, but the defendant refuses to carry out the contract on the ground that the deeds from Gill to Williams and from Williams to Bradford do not convey the same lot which he has contracted to buy, and that the plaintiffs’ title is defective and unmarketable.

From the date of the deed from Eeid to Gill, January 16, 1858, down to the day after the date of the recording of the deed from Gill to Williams, March 15, 1867, Gill was not the owner of any piece or parcel of land within the block referred to except the premises in question, and no conveyance of any lot of land on that block by him is recorded during that period excepting the deed to Harriet Williams. And from the date of the deed from Eeid to Gill, January 16, 1858, down to the date of the deed of correction by Bradford to Orolius, July 10, 1882, no conveyance exists of record conveying or purporting to convey the premises in question, save these herein referred to. The defendant paid to the plaintiff George Egelhoff the sum of $200 on account of the purchase at the time the contract was executed, and afterwards expended $58.25 in an examination of the title. The submission does not indicate that any of the parties concerned in the devolution of the title were ever in possession of the property excepting the plaintiff George Egelhoff. Nor is there anything necessarily showing that John Gill was not the owner on March 7, 1867, of lands on the southwesterly side of Fourteenth street, 557 feet 10-|- inches northwesterly from the corner of Fourth avenue and Fourteenth street.

On this state of facts, the court cannot compel the defendant to take the title. Very likely the property which John Gill bought from Peter Iteid was the same as that which he afterwards conveyed to Harriet Williams, but there is nothing in the conveyances which attests that fact with reasonable certainty. In the latter conveyance there is no reference whatever to the former; nothing to indicate that the premises conveyed by the later deed were the same as those described in the earlier one. And unfortunately there is nothing in the description of the property to locate it aside from the distance of the point of beginning from the westerly corner of Fourth avenue and Fourteenth street. If, independently of the distance of the property from this corner, there were marks of identity in the description which would serve to locate it, such as its propinquity to adjoining or neighboring property, or the identity which attends upon street numbering, the conclusion might well be different. It is true the lot is irregular in shape, being 20 feet front and rear, with one side 6 inches longer than the other, but there is nothing in the submission to indicate that this is an uncommon peculiarity, or that on March 7, 1867, just such a lot was not located on Fourteenth street, 557 feet and 10^- inches northwesterly from the westerly corner of Fourth avenue. There is no latent ambiguity and no ambiguity apparent on the face of the document. The deed to Harriet Williams describes with precision the property assumed to be conveyed, and it must be presumed to describe it in accordance with the then existing conditions and surroundings in the entire absence of evidence to the contrary. The distance of the point of beginning from the corner of the two streets is the only precise and definite statement in the whole description by which the location of the premises can be ascertained with intelligible certainty. If this distance as stated were in conflict with any other statement in the description it might be rejected, but there is no reason or authority for the proposition that this may be done with the only definite and certain element in the description which serves to fix the exact location, and in the absence of any conflict apparent on the face and in the terms of the description.

Cook v. Babcock (7 Cush. 526) was an action of trespass, the defendant asserting title. The land was conveyed as bounded north on the line of the town of Blandford. The line was subsequently established by the Legislature. A conveyance was afterwards made by a similar description, and the plaintiff claimed title by mesne conveyances under this deed. He offered evidence to show that at the time of the first conveyance the town line was understood and reputed to run farther north than as afterwards fixed by the legislative act. Chief Justice Shaw said (p. 528): “ When the description in a deed or devise is clear and explicit, and without ambiguity, there is no room for construction or for the admission of parol evidence to prove that the parties intended something different. * * * When, indeed, upon application of the description to the land, it is doubtful what was intended, this is a latent ambiguity, and then evidence aliunde may be given; as where a description gives the line as running to a maple tree marked, and two maple trees are found, either of which would answer the description. So here, if the words had been the ‘ reputed ’ line or the ‘ supposed ’ line, or words of that description. But the deed from Herrick to Clark, on which the question arises, was made after the dividing line between Blandford and Chester had been established by law, and must be presumed to have been known by the parties, from the use which they made of it in the deed, as a monument.”

In Stearns v. Rice (14 Pick. 411), where the land had been conveyed bounded on a road, and afterwards the road was changed, by which a small strip of the land conveyed was separated from the remainder, and afterwards the grantee mortgaged by a description similar to that by which it was conveyed to him, bounding on the road, it was held that this bound must be taken as the road then existed, and did not include the strip separated by the change of the road.

In Singer v. The Mayor (47 App. Div. 42) the Appellate Division in the first department has recently held that where there is no ambiguity in a description referring to a monument, the location of which is not in doubt, parol evidence is not competent to show the intention of the parties adopting the monument, but such intention is to be determined as a legal proposition. Mr. Justice Rumsey said (p. 44): “ The usual and ordinary rule in such cases is that when the description of lands in the conveyance refers to any artificial monument as the boundary, such monument is controlling. (Van Wyck v.Wright, 18 Wend. 157; Wendell v. People, 8 id. 183.) In the application of that rule it has been held that where a highway is mentioned as a boundary of land it means the highway as it exists and is open, and not the highway as it may be laid out on a map. (Blackman v. Riley, 138 N. Y. 318; Falls Village, etc., Co. v. Tibbetts, 31 Conn. 165; O’Brien v. King, 49 N. J. Law, 79.)

In Jones v. Smith (73 N. Y. 205) the rule was stated in the head note that “ where a' deed contains an accurate description by permanent boundaries, capable of being ascertained, a general reference, in addition, to the premises as in the possession of the grantor or grantee will not pass title to lands outside of the boundaries given ; the more certain and permanent portions of the description will control.”

In Thayer v. Finton (108 N. Y. 394, 399) the court said: “ A number of cases are cited in the opinion of the court below, but we are of the opinion that the principles laid down in them were incorrectly applied to this case. When ambiguity or imperfection exists in the description of land contained in a conveyance, it is competent to refer to general language, as well as to all parts of the deed, to locate and identify the property intended to be conveyed. Such are the cases of Jackson v. Barringer (15 Johns. 471); Child v. Ficket (4 Me. 471); Marr v. Hobson (22 id. 321), and Grandin v. Hernandez (29 Hun, 399). So, too, where by proof aliunde the deed, it is shown that no property answering the description belongs to the grantor at the ¡Hace indicated, but other lands in the vicinity, corresponding in some particulars to such description, did belong to him, a latent ambiguity is created which may be solved by the further indications afforded by the deed or by extraneous evidence. The case of Grandin v. Hernandez, in one of its aspects, was of this character.” The dictum in the next to the last sentence in this citation would seem to furnish some support to the plaintiff’s contention, but it appears that, in the case cited, Grandin v. Hernandez,, while the deed erroneously described the property as located in the block between Sixth and Seventh avenues, it was therein stated that the premises were the same as those conveyed to the grantor by a prior deed explicitly referred to, and in which the location was correctly stated to be in the block between Fifth and Sixth avenues.

We derive no aid from the cases on which the plaintiff chiefly relies (Patch v. White, 117 U. S. 210; Govin v. Metz, 79 Hun, 461, and Gallagher v. Quinlan, 10 App. Div. 402). They are all cases of devise, to which the rule in 1 Jarman on Wills (6th ed.), 742, is applicable, that “ where the description is made up of more than one part, and one part is true but the other false, there, if the part which is true describe the subject with sufficient legal certainty, the untrué part will be rejected and will not vitiate the devise.” In the ease at bar, however, the true part contains no characteristics which would not be applicable to any other lot of the same dimensions, and there is nothing in the deed to connect it with the property conveyed by the prior grant. The only description which serves as a location is contained in the false part, and it, therefore, lacks the legal certainty which is essential to a deed. Under such circumstances we must enforce the rule as stated in Heller v. Cohen (154 N. Y. 299, 306), that “ a purchaser ought not to be compelled to take property, the possession of which he may be obliged to defend by litigation. He should have a title that will enable him to hold his land free from probable claim by another, and one that if he wishes to sell would be reasonaby free from any doubt which would interfere with its market value. If it may be fairly questioned, specific performance will be refused. ( Vought v. Williams, 120 N. Y. 253, 257 ; Shriver v. Shriver, 86 N. Y. 575, 584; Fleming v. Burnham., 100 N. Y. 1.) So, where there is a defect in the record title which can be supplied only by resort to parol evidence, and the title may depend upon questions of fact, the general rule is that the purchaser will not be required to perform his contract. (Irving v. Campbell, 121 N. Y. 353; Holly v. Hirsch, 135 N. Y. 590, 598).”

We may say, as was said in Heller v. Cohen (supra, p. 313), that while we do not regard the plaintiffs’ title as actually bad, and while it is quite probable that a good title may be established, yet we think the proof was insufficient to show that it was so far free from any reasonable doubt as to require its acceptance by the defendant.”

The defendant must have judgment in accordance with the terms ■of the submission, without costs.

All concurred.

Judgment for the defendant on submitted case, without costs.  