Argued June 16, 1915
Decided July 13, 1915
Charles H. Tuttle, Charles E. Hotchkiss and Harold C. McCollom for appellant.
Andrew C. Fenton for respondent.
Whether the provision in the deed from Sarah A. Brown to Margaret A. Carroll, reserving the right to the defendant William H. Brown to fish in the Mill brook stream be regarded as a reservation or as an exception makes no difference so far as this case is concerned. ( West Point Iron Co. v. Reymert, 45 N.Y. 703; Beardslee v. New Berlin L. P. Co., 207 N.Y. 34.) For whichever way viewed the clause in the deed was entirely ineffectual to convey any estate or interest whatsoever in the lands described to a stranger to the conveyance. ( Bridger v. Pierson, 45 N.Y. 601; Craig v. Wells, 11 N.Y. 315; Beardslee v. New Berlin L. P. Co., supra.)
Because the defendant was a stranger to the conveyance the exception or reservation of his right to fish in the Mill brook stream did not justify his trespass upon the plaintiff's land. The defendant, in order to meet this objection to his case, undertook to show that he was not a stranger to the deed, but that he was in fact the grantor therein, and the reservation was to himself. He proved that his deed to his mother was a mortgage which he had paid off, and that under the well-settled rules of law he had become reinvested with the absolute title to the lands mortgaged. ( Shattuck v. Bascom, 105 N.Y. 39; Odell v. Montross, 68 N.Y. 499; Carr v. Carr, 52 N.Y. 251.)
The plaintiff insists that such proof on the part of the defendant was wholly inadmissible, and that the defendant was estopped from showing a state of facts different from that which the deeds as recorded disclosed. I think the contention of the plaintiff in that respect must prevail.
The record of the deeds from the defendant to Sarah A. Brown and from her to Margaret A. Carroll was constructive notice to the plaintiff of just what the record showed and the legal consequences thereof, and nothing more. The record showed ownership of the lands in Sarah A. Brown, and a deed from her containing a clause reserving to the defendant, who was not a party to the deed, the right to fish in the Mill brook stream. The plaintiff knowing the law, as we must assume, understood that such a clause in the deed was inoperative in that it gave the defendant no right at all. That was the legal effect of what the records showed. The defendant could not prove that his mother had no title to the land and that he, the defendant, was the real grantor, and that, therefore, the exception or reservation was to a party and not to a stranger to the conveyance. The defendant could not thus defeat the legal purport of the conveyances with reference to the reservation and exception any more than he could defeat the conveyances altogether by showing that his mother had no title.
It may perhaps be that if the defendant in fact had the right to fish in the stream, which could be established without questioning the conveyance from his mother, then the clause in her deed reserving the right to him would be sufficient constructive notice thereof to bind her grantee ( Sweet v. Henry, 175 N.Y. 268; Acer v. Westcott, 46 N.Y. 384), but that is not the situation which we must consider. The defendant did not attempt to establish his right in any other way than by showing that the facts were different from what the record reveals. That was not permissible. ( Leonard v. Clough, 133 N.Y. 292.)
The plaintiff was a subsequent purchaser in good faith and for a valuable consideration of the Mill brook stream, claiming under the deeds to and from Sarah A. Brown. The plaintiff's conveyance had been recorded, and it would be an invasion of the Recording Act to allow the defendant to show by oral testimony that the deeds under which the plaintiff claimed were in any way different from what they, on their face, purported to be. ( Peck v. Mallams, 10 N.Y. 509, 540.)
The plaintiff's exceptions to the findings of the court, and to the admission of the testimony given by the defendant and his mother, were well taken, and I recommend that the judgment appealed from be reversed and a new trial granted, with costs to abide the event.
WILLARD BARTLETT, Ch. J., WERNER, COLLIN, MILLER, CARDOZO and SEABURY, JJ., concur.
Judgment reversed, etc.