Opinion
Argued September 28, 1871
Decided January term, 1872
Samuel Hand for appellants. Francis Byrne for respondents.
The Supreme Court, at General Term, reversed the judgment given at Special Term, and held that the plaintiffs were not entitled to the relief demanded by them, because both parties were mutually mistaken as to the depth of the lot, both supposing that the 120 feet would include the whole of the stable.
The evidence and the finding of the judge show that both parties intended, the grantor to sell and the grantees to purchase, to the rear end of the stable. Both, however, supposed that 120 feet would extend the lot thus far. Both parties must stand upon the written agreement, as neither alleges any mistake in it, or claims any reformation of it.
What then is the proper construction of the written agreement according to well-settled rules of law? If the northerly and southerly line is but 120 feet, the whole of the stable is not included. If the whole of the stable is included the line is longer. Which of these descriptions shall prevail?
It is perfectly well settled, that where there is a discrepancy in a description of land between the distance named therein and a fixed known monument, such as a fence, wall, building, or other specified object, the latter must prevail over the former. In Wendell v. The People (8 Wend., 183), it is said that, "in the construction of grants, both course and distance must give way to natural or artificial monuments or objects, and courses must be varied and distances lengthened or shortened, so as to conform to the natural or ascertained objects or bounds called for by the grant." There are numerous other cases to the same effect. These cases all proceed upon the theory that the parties were mistaken as to the courses and distances, and intended to convey by the well-known monuments, in reference to which they were not likely to be mistaken.
It does not help the defendant in this case to claim or show, that both parties were mistaken as to the depth of this lot in feet, so long as it is clear, both by the parol negotiations which preceded the written agreement, and the written agreement itself, that they intended a lot so deep as to include the stable.
There might be cases, in actions for specific performance, where it would not be proper to apply this rule of construction, as if the parties had contracted particularly in reference to distances, and it would be a great hardship for the vendor to convey by the natural or well-known monuments, and clearly inequitable to compel him to do so. But here there is no proof that defendant would be seriously harmed or discommoded if he were compelled to convey the stable, and there is no proof that the consideration paid by the vendees is not an ample price for the whole lot, including the stable.
I, therefore, reach the conclusion that the order of the General Term should be reversed, and the judgment at Special Term affirmed, with costs.
All concur. LEONARD, C., not sitting.
Order reversed.