Blackman v. Striker

• Decision Date: 05 June 1894
• Parties: BLACKMAN v. STRIKER et al.
• Court: New York Court of Appeals Court of Appeals

142 N.Y. 555

37 N.E. 484

BLACKMAN

v.STRIKER et al.

Court of Appeals of New York.

June 5, 1894.

Appeal from supreme court, general term, first department.

Ejectment by John E. Blackman against Elsworth L. Striker and others. Verdict ordered for defendants, and plaintiff excepted. From a judgment of the general term overruling his exceptions (21 N. Y. Supp. 563), plaintiff appeals. Affirmed.

George Hoadly, for appellant.

George Bliss, for respondents.

O'BRIEN, J.

This was an action to recover real property. The trial court directed a verdict for the defendants, and the general term has affirmed the judgment entered on the verdict. The land which is the subject of the controversy is particularly described in the complaint, and is situated at the corner of Ninth avenue and Fiftieth street in the city of New York. John Hopper, the elder, who died in the year 1778, is the common source of title. He was the owner of a farm in what is termed in his will and in subsequent conveyances the ‘Out Ward of the city of New York,’ which he devised to his five children and the descendants of a deceased child. The will directed that after his decease the farm should be divided into six equal portions by competent and disinterested persons, after having made a survey and chart of the farm and the several divisions. The parcels thus surveyed and mapped were to be so arranged, with reference to value, as to make all as nearly equal as possible, and then the devisees were to determine by lot which parcel should belong to each in severalty. This was to be done by numbering the six parcels on the map, and placing each number upon a ticket, and, in the language of the will, each devisee was to ‘draw one ticket, and the number thereon should be the number of the lot he or she shall inherit by the devise.’ The drawing was to be done under the direction of the executors of the will. The children of the deceased child were entitled to draw and hold as tenants in common one of the lots so numbered. On the 4th of February, 1782, the devisees, including the guardian of the minor grandchildren, entered into an agreement in writing under seal, whereby it was agreed that the farm should be divided into lots on the east and west side of the Bloomingdale road, which ran through the property, that is to say, six parcels on each side of the road, and it then provided that a parcel on the east and one on the west side should be matched and represented by a number on the map, and consequently by a single ticket at the drawing. The parcel which was designated on the map as lot No. 2 contained the family burying ground, a small plot surrounded by a fence, the area of which, for the purpose of this case, may be stated as about 40 feet in width and 80 feet in length. This burial plot is supposed to be the identical land in controversy; and parcel No. 2, upon which it was located, was drawn by and allotted to Matthew Hopper, one of the sons. After the division and allotment of the six parcels between the devisees, partition deeds were executed and delivered by all the parties in interest to four of the devisees, in which the parcel so conveyed is described in each case; but the record does not show that any deed was ever executed to Matthew Hopper, or to the minor grandchildren. Whether this results from the fact that no such deed was ever in fact executed, or that the conveyances, if made, have been lost without record, does not appear. The absence of any proof of the execution and delivery of such deeds is not, I think, material on the question of title. The heirs of John Hopper, the elder, took title in severalty to their respective allotments of his estate by force of the devise to each contained in the will, the making of the map or chart directed by the testator, the execution of the agreement for the partition or division directed by the will, and the result of the drawing, whereby each of the six shares was specifically described and located upon the farm. The evidence tended to prove, if it did not actually establish the fact, that the title and possession of that portion of the farm upon which the burying ground was located passed to Matthew under his father's will. On the 17th of February, 1782, Matthew Hopper and wife conveyed by deed, with full covenants, to his brother John Hopper, the younger, the parcel which had been assigned to him, it being described in this deed by metes and bounds, and by reference to the partition map or chart, where it was designated as lot No. 2. This deed, however, contained the following clause, which is the foundation of this action. After describing the land and enumerating all appurtenances, actual or reputed, this language is used: ‘Saving, excepting, and reserving unto the heirs of the said John Hopper of the Out Ward, deceased, and to their and each of their heirs out of this present demise, all that certain burying ground now in fence, consisting of forty-eight feet square parcel of the said lot of ground, and commonly called the ‘family burying ground,’ with free ingress, egress, and regress into, out of, and from the same to bury the dead, etc., forever.' The plaintiff claims that under this clause the fee in the burying ground remained in Matthew Hopper, and descended to his heirs, who have conveyed to the plaintiff, while the defendant claims that the fee passed to John Hopper, the younger, by the deed, subject to an easement for burial purposes, and to the defendant, one of his descendants. John Hopper, the younger, grantee in this deed, died in the year 1819, having disposed of all his property by will. This parcel remained intact down to the year 1885, though no burials were made in the plot subsequent to the year 1840. The defendant is one of the descendants of John Hopper, the younger, and in an action of partition, brought in 1885, a parcel of land, which included the burial plot, was assigned and allotted to him by the report of the commissioners and the judgment in the action. Immediately after this partition the defendant took possession of the land in question, removed the remains of the dead buried there, and the fence, and proceeded to erect an expensive building on the ground. The will of Matthew Hopper was admitted to probate September 25, 1784. There is nothing in it to indicate that he supposed he had, at the time of executing the will, which was the same year in which it was admitted to probate, any interest in the land in question. He made no reference to it either by specific devise or general clause, and, if he had any interest after the deed to his brother, he died intestate as to such interest. In the year 1889 his heirs conveyed to the plaintiff all the right, title, and interest in and to all lands which John Hopper, the elder, died seised or possessed of in 1778, or which he devised by his will.

The vital point in the plaintiff's case is involved in the construction which should be given to the clause in the deed from Matthew to John Hopper, since...