Muldoon v. Deline
Decision Date | 04 October 1892 |
Citation | 135 N.Y. 150,31 N.E. 1091 |
Parties | MULDOON v. DELINE. |
Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, fourth department.
Action by John A. Muldoon against Jerusha Deline to recover a tract of land. From a judgment of the general term (16 N. Y. Supp. 953, mem.) affirming a judgment entered on a verdict for plaintiff directed by the court, defendant appeals. Affirmed.
B. N. Bailey,(M. M. Waters, of counsel,) for appellant.
Geo. B. Warner, for respondent.
This is an action of ejectment to recover a small, triangular piece of land. The parties own adjoining lots, and both claim under the same grantor, Burton. The plaintiff took his deed June 29, 1885, and the defendant took his July 17th afterwards. The land conveyed to the plaintiff is described in his deed as follows: ‘Beginning in the easterly line of Rust street, forty feet north from the southerly line of lot No. 121 on said map; thence easterly, at right angles to Rust street, 153 feet to the southerly line of lot No. 137; thence northwesterly on the southerly line of lot No. 137, forty feet; thence westerly about 128 feet to the easterly line of Rust street, to a point 40 feet north from the place of beginning; thence southerly along the easterly line of Rust, to the place of beginning.’ It is conceded that this description includes the land in controversy. The defendant upon the trial offered parol evidence of the conversations and negotiations between Burton and the plaintiff, and of other circumstances, to show that it was not the intention of the parties to the deed to include therein the land in question, and that the first course in the deed should not run at right angles with Rust street, but diagonally, so as to strike the southerly line of lot 137 40 feet from the southerly line of lot 121. There is no ambiguity in the description contained in the plaintiff's deed. Every line can be surveyed on the ground just as it is given, and the grantor had the land. When the description is applied to the land, no ambiguity is produced, and hence there is no room for parol evidence. It is true that the intent of the parties to the deed must control. But that intent must be ascertained from the language contained in the deed. When, however, by applying the description contained in a deed, an ambiguity is raised, evidence may be given to explain that, and, if it be found that some particular of the description is false or defective, that may be...
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