Murray v. Klinzing

Every deed to be effectual to convey land must be upon consideration; otherwise there will be a resulting trust in favor of the grantor. A deed in which the consideration is stated as “-dollars,” held to be sufficient. Any alteration in a deed, to render it void, must be a material-one; that is, one which causes the deed to speak a language different in legal effect from that which it spoke originally. A map or diagram drawn on a deed properly admitted in evidence, in such, relation to, or connection with, the descriptive words of the deed as to indicate to any reasonable person that the grantor intended it to be taken as a part of the description of the land conveyed by such deed, is itself admissible in evidence and may be treated as á part of the deed although not referred to in the deed itself.

Action for unlawful entry upon land of the plaintiff and tearing down his fence; brought originally before a justice of the peace and thence by the plaintiff’s appeal to the Court of Common Pleas in Fairfield County where the court, Curtis, J., rendered judgment for the defendant and the plaintiff appealed to this court. The defendant admitted entering upon, the land described in the complaint, but alleged that he did so as the servant and by the direction of The Danbury & Bethel Horse Railway Company, and that said company had the right to enter upon the same. The other paragraphs of his defense were as follows: “ 2. On the 5th day of April, 1888, the plaintiff executed and delivered to the said Horse Railway Co., a deed with full covenants of seizin, a certain piece of land south of and adjoining the land described in the complaint, which said land was bounded and described as follows: north by a new road laid out on grantor’s land, east by grantor’s land, south by land of said Railway Company, and west by the highway. “ 8. That under said deed the said Railway Co. went into possession of said land, and was in possession thereof at the time of the acts alleged in the plaintiff’s complaint. “ 4. That afterwards the new road described in said deed was opened, laid out and graded by the plaintiff, and the said Railway Company .entered upon and used the same as a highway by its servants and employees. “5. That the plaintiff is estopped from denying the right of the said Company by its servants, employees and agents to use said land so laid out as a highway.” These averments were all denied by the plaintiff. On the trial the defendant offered in evidence the said deed dated April 5, 1888, from the plaintiff to the said railway company, in which the land conveyed was described as set out in the second paragraph of defense. The plaintiff objected to the said deed being received on the grounds:—(1) That the plaintiff never executed it; (2) that subsequent to its execution and delivery a material alteration had been made therein; and (3) that after said alteration the said deed was never re-executed. As to these objections the court found:— That the said deed was executed and delivered by the plaintiff to the said railway company; that at the time of such execution and delivery the consideration clause therein read,— “ for the consideration of dollars,” etc.; that afterwards on the 8th day of April, 1888, the said blank was filled by writing in the words “ four hundred and fifty-six,” which sum was the real consideration paid by said railway company to the plaintiff for the land conveyed in said deed; and that this was done in the presence of the plaintiff, and with his full knowledge and consent; and accordingly admitted said deed in evidence. The court also found that there was and is on said deed a map or diagram showing or defining the land conveyed, and describing the northern boundary as “ Patrick Murray’s new road.” There is in said deed no reference to such diagram or map. The defendant also offered in evidence another deed from the plaintiff to the said railway company dated the 12th day of July, 1887, in which the land conveyed is described as bounded “ north by a new street to be opened by the grantor.” To this deed the plaintiff objected on the ground that it had never been executed and delivered. The court found it had' been duly executed and delivered and admitted it in evidence. The court also found that the land on which the defendant entered, was the land described in said last mentioned deed as “ a new street to be opened by the grantor; ” and in the said first mentioned deed as “ a new road laid out on grantor’s land,” and as “ Patrick Murray’s new road; ” that after the giving of said deeds, to wit, in December, 1888, the plaintiff did lay out and work a new road along the northern boundary line of the land deeded by him to the railway company, by plowing and rounding the ground into the form and shape of a well-defined road, and opened the same to the public. Subsequently, to wit, about seven months thereafter, but before the public used the same, he closed the said roadway by erecting a fence across its entrance to the highway; and that the acts complained of were the using by the defendant of only so much of said premises as was sufficient to give said company a reasonable and convenient right of way along the northern boundary of the land acquired by said deeds to the highway; and that said using was in a reasonable manner. The court found the issues for the defendant and for the defendant to recover his costs.