Schoonmaker v. Hoyt

• Decision Date: 18 February 1896
• Citation: 42 N.E. 1059,148 N.Y. 425
• Parties: SCHOONMAKER v. HOYT et al.
• Court: New York Court of Appeals Court of Appeals

148 N.Y. 425

42 N.E. 1059

SCHOONMAKER

v.HOYT et al.

Court of Appeals of New York.

Feb. 18, 1896.

Appeal from supreme court, general term, Fifth department.

Action by Elijah R. Schoonmaker against William Hoyt and another to recover the value of a quantity of bark.From a judgment of the general term (25 N. Y. Supp. 337) reversing a judgment entered on the report of a referee in favor of plaintiff, plaintiff appeals.Reversed.

William H. Henderson, for appellant.

Charles H. Brown, for respondents.

MARTIN, J.

This is an action to recover the value of a large quantity of hemlock bark to which the plaintiff claimed title, that was taken by the defendants, and appropriated to their own use.The only question involved upon the trial or upon this appeal relates to the title to the bark thus taken.On June 24, 1871, Arthur Palen, Edward Palen, and Gilbert W. Palen were the owners in fee of about 1,300 acres of land, upon which there was standing a large number of hemlock trees, the bark upon which is the subject of this controversy.They obtained their title through a deed from Jarius B. Strong, made in pursuance of a contract entered into June 6, 1869.On June 3, 1886, Edward Palen and Arthur Palen, individually and as surviving partners and executors of the last will and testament of Gilbert W. Palen, deceased, and Caroline Palen, conveyed to the plaintiff the bark on all the trees down and standing upon the premises mentioned, with the right of ingress and egress to remove it, all rights of action they had against any parties for cutting, removing, or interfering with such bark, and all the bark which might have been peeled or taken from the trees on said land.On August 23, 1886, James F. Palen also executed to the plaintiff a similar deed.These deeds were recorded in the office of the clerk of Cattaraugus county, where the land was situated.The first was recored June 9, 1886, and the other October 11, 1886.The grantors in these conveyances were the proper parties to convey the rights sought to be transferred, and had authority to make them.Thus, the plaintiff acquired all the title that the Palens had to the bark in question, which was an absolute one, unless the defendants possessed a prior title, which was superior to that acquired by the plaintiff.Therefore it becomes necessary to examine the facts relating to the title claimed by the defendants.

The proof relating to that question is undisputed.It discloses that on December 8, 1869, the Palens entered into a contract with Job Moses, whereby the latter sold and transferred to them the bark then growing on all the hemlock trees upon certain lots owned by him and described therein, containing about 1,876 acres, with the right of ingress and egress for the purpose of removing it, in consideration of which the Palens agreed to sell and convey to Moses the several lots of land owned by them, but excepted therefrom and reserved to themselves, their heirs and assigns, all the hemlock bark thereon, with the right of ingress and egress for the purpose of peeling and removing it.By this contract, the Palens acquired a right to all the hemlock bark upon the Moses lots, and agreed to transfer to Moses the title to the lands then belonging to them, excepting and reserving to themselves the title to all the hemlock bark thereon, and the right to enter upon the premises, to peel and remove it.On January 10, 1873, the Palens performed this contract upon their part, by executing and delivering to Moses deeds of the premises they agreed to convey to him, which contained the same exception and reservation as to the bark and its removal as were contained in the original contract.On February 1, 1873, to secure Jackson S. Shults from any loss or damage he might sustain by reason of having executed a bond for their accommodation, the Palens assigned to him the Moses contract.So far as it related to this contract, the assignment was of ‘one contract between Job Moses, of the first part, and A., E., and G. W. Palen, of the second part, dated December 8, 1869, for the sale and removal from the lands therein described of the hemlock bark thereon.’This assignment was prior to the transfers by the Palens to the plaintiff and, if it effected a transfer of the bark in question, the defendants' title is superior to that of the plaintiff.Consequently, the real question involved upon this appeal is whether the assignment by the Palens to Shults transferred to the latter the title to the bark upon the Palen lands, as it is conceded that the defendants have acquired all the title which Shults had under and by virtue of that assignment.

As it seems but reasonable to suppose that the Palens intended to assign to Shults only such title and interest as they acquired under the Moses contract, it becomes material to ascertain what they thus acquired.When we examine the Moses contract, we find that all the Palens actually acquired under it was the bark on the Moses lots, with the right to enter thereon and remove it.None of the bark on the Palen lots was transferred to them.They already owned that.It was excepted in that portion of the contract by which they agreed to transfer their lots to Moses, so that they retained under their former title whatever interest continued in them, and did not acquire any title by reason of any provision contained in that contract.‘By an exception, the thing excepted is taken wholly out of the grant, and is no parcel of the thing granted.That which is excepted out of the general words is in the same case as if it had never been touched.’Burr v. Mills, 21 Wend. 290, 293;Craig v. Wells,...