Opinion
May 24, 1943.
In an action for ejectment, judgment in favor of plaintiff reversed on the law and the facts, with costs, and judgment directed for defendants dismissing the complaint on the law, with costs. The chain of title of neither party specifically includes the disputed parcel B. The only proof tending to show title thereto in the plaintiff is the 1852 deed of conveyance to Harriet Dan (Plaintiff's Exhibit 20), plaintiff's predecessor in title, which describes the land there conveyed as containing fifteen acres "more or less." No reliance can be placed on the accuracy of the description set forth in this deed or on the statement therein as to the area contained within the boundaries mentioned. For many years thereafter the land thus conveyed was assessed to the grantee's husband, Richard Perry Dan, for only ten acres. The other proof in the record clearly indicates that by making this estimate of the acreage in the 1852 deed, there was no intention to include parcel B. From the descriptions contained in many of the deeds of conveyance, both before and after the 1852 deed (Plaintiff's Exhibits 55, 56, 57, 58, 59, 60 and 61), it appears that Daniel Dan was consistently treated as the owner of all the land in the southwest corner, including parcel B. The plaintiff herself recognized defendants, who derived their title through Daniel Dan, as the owners for, with full knowledge, she permitted them, without protest, to cut timber thereon from 1929 on and to erect three buildings and a bridge. Indeed, plaintiff, in an action for rescission brought against her grantor, Maurice Flynn, alleged that defendant Lyada Bouton was the owner of parcel B and, based upon this claim, she received in effect a substantial reduction in the purchase price. In any event, plaintiff has failed to sustain the burden of showing title to the disputed parcel to be in her; and on the contrary all the evidence indicates that title is in defendants. Defendants' proposed Exhibit J should have been received in evidence. It is referred to in some of the exhibits and was apparently used by plaintiff's attorney in drawing the composite pencil diagram which was made part of plaintiff's Exhibit 3. However, even without this proposed exhibit, plaintiff has failed to sustain the burden of establishing title in her to the disputed parcel. Findings and conclusions inconsistent herewith are reversed and new findings and conclusions will be made. Settle order on notice within ten days from the date of this decision. Hagarty, Carswell, Johnston, Adel and Taylor, JJ., concur.