Opinion
December Term, 1865
D. McMahon, for the appellant.
William Fullerton, for the respondent.
The facts found by the referee are decisive in support of the plaintiff's right. On the 9th of February, 1835, a sealed agreement was concluded between Laverty and Guild, by which the former undertook to fill in the premises in question, and the latter to convey to him an undivided third of the property in fee, upon the performance of this agreement. The plaintiff fulfilled his covenant and entered into possession as vendee. He repeatedly demanded his conveyance, and Guild promised but neglected to execute it.
The appellant Moore had never any title to the premises. The parties, through whom he sought to deduce an interest, took possession of the lot under a lease which did not embrace it, and executed by the heirs of Titus who neither owned nor claimed it. The parcel of land, of which the premises in question formed a part, had been conveyed by Titus to Waterbury with covenants of warranty. It was substantially a parallelogram, extending to the river, and embracing the interest claimed by Titus in the lands under water. Guild, who succeeded to the interest of Waterbury, was entitled as against Titus and those claiming under him, to the river frontage secured by this deed; and under the law of 1835, he was authorized, as riparian proprietor, to fill up the land under water in front of his lot. It is true that by the projection of the lines of the gore into the stream, as provided for in the contract, the plaintiff acquired an interest in the lands under water, which was disproportionate as between him and Guild, the owner of the entire lot; but this was a matter in which Titus had no concern, as there was no encroachment on his side beyond the division line. It may be that this line was not mathematically exact, but as it was located and defined by Titus himself, neither he nor those claiming under him can be permitted to question it, and to claim the benefit of improvements made on the faith of such location. The appellant, therefore, has no title or color of title to the whole or any part of the premises in question.
Failing in establishing any interest of his own, the appellant insists that the plaintiff is barred by the foreclosure of certain mortgages, under which he claims that the title of the gore became vested either in Waterbury or the Meekers. Waterbury is not a party, and before the action was commenced, his interest, if any, was quit-claimed to the Meekers, who acquiesce in the judgment.
The rights of the plaintiff were not impaired by the foreclosure of the mortgage from Guild to Halsey. That mortgage was originally a lien on the entire lot conveyed to the latter by Titus. It was given to secure $10,250 of the consideration money on the purchase of the same property by Guild. The gore was an inconsiderable portion of the premises, and it was relieved from the lien in August, 1837, by a release from the mortgagee. The referee found, as matter of fact, that the bill of complaint, in the foreclosure suit brought by the representatives of Halsey, alleged the release of the gore, and that it was excepted in the decree authorizing a sale of the premises, though embraced in the master's deed. Upon this state of facts, it is obvious that the grantee acquired no title to the gore, and that, to the extent of the lands released, the conveyance was a mere nullity.
But the appellant insists that the Supreme Court erred in sustaining the finding of the referee, that the sale and conveyance of the released premises were unauthorized by the decree. If we were at liberty to go behind the finding of facts, we should have no hesitation in concurring with the court below in its conclusion. It is true that an error appears in the description of the premises excepted from the operation of the decree of sale. The language is, "excepting that part of the premises above described (lying northwesterly of North Sixth street) which has been released from the lien of the said mortgage." The word "northwesterly" should have been "southwesterly." It is an obvious clerical error, apparent on the face of the enrolled decree, the whole of which is to be read together. The complaint alleges that the part of the premises released was that "lying southwesterly of North Sixth street." The prayer is for a sale of the mortgaged property, "except that portion released by your orator as aforesaid." The decree is founded on the consent of Laverty and the other defendants that the bill be taken as confessed. It recites the master's report, that the release alleged in the complaint was duly executed for a valuable consideration. No other release is referred to in any part of the enrolled decree. The words above embraced in brackets, in which the misdescription occurs, may properly be rejected as surplusage. Utile per inutile non vitiatur. The exception taken by the appellant to the finding of the referee concedes "the mistake" in the decree. The master's deed, however, would have been inoperative in respect to the gore, even if the decree had authorized its sale as a portion of the mortgaged premises. The existence of a power is unavailing to aid a defect in its execution. It was shown by the master's report, that the sale he made, in fact, was of the mortgaged property, "excepting that part of the premises described as lying southwesterly of North Sixth street." The conveyance was, therefore, wholly inoperative as to the premises in question, which, whether excepted or included in the decree, were not embraced in the master's sale.
Equally unfounded is the claim that the plaintiff's right was barred by the sale to the defendants Meeker. They purchased under a decree for the foreclosure of the mortgage executed to Halsey by the assignees of Guild. The plaintiff was not a party to the suit, and his rights were unaffected by the foreclosure. The assignees, at most, could mortgage only the interest of Guild, subject to the equities of the plaintiff as vendee in possession, under a contract which he fulfilled. He was entitled to a conveyance, with covenants of warranty, of an undivided third of the premises in fee. All that the Meekers acquired was the remaining interest of Guild; and they therefore very properly repudiate the claim, which the appellant assumes to interpose in their behalf.
The judgment should be affirmed.
All the judges concurring,
Judgment affirmed.