Redfields v. Redfields

BIRD, V. C.

Bill to foreclose mortgage.

W. P. Voorhees, for complainant. Edward T. Green, for Pennsylvania Railroad Company.

BIRD, V. C. On this bill to foreclose, a conflict has arisen between the complainant and the Pennsylvania Railroad Company, one of the defendants, respecting the quantity of land included in the complainant's mortgage. The complainant's intestate took a mortgage of land described only by adjacent premises, with an exception and reservation therein of "so much of the above-described tract and premises as may be required by the said Pennsylvania Railroad Company for the purpose of straightening their track according to a certain survey and map made by them, whereby said reserved premises are described as follows, to-wit: Beginning at a certain point on Grove avenue distant sixty feet south of the track of said railroad company, and thence running easterly, at a divergent angle from said track, about six hundredfeet, to a point about one hundred feet south of said track, and from thence, at a convergent angle therewith, to a point about thirteen hundred feet distant from the point of beginning, where the said line crosses the said track; thence running westerly along the said track to the intersection of the same with Grove avenue aforesaid; and thence southerly along the said Grove avenue sixty feet, to the point or place of beginning,—comprising within said bounds two and one-half acres of land or thereabouts."

The conflict arises from the use of the word "track." It will be seen that the word "tract" is employed once in reference to the said matter, and that the word "track" is used in every other instance where one or the other was certainly intended. The lands of the defendant company extended considerably beyond the main location of its track. It is plain that, if the reference is up to the "track," rather than to the "tract," (the line of its lands,) all that portion of the lands of the company which lies outside or beyond the location of the track is included in the description which has been recited, and if that portion entered into the calculation in ascertaining the amount of land which was reserved, the amount reserved is less than two acres and one-half by the amount of the land which already belongs to said company, so included in such description. The defendant company insists that the scrivener who wrote the deed made a mistake in using the word "track" in every instance in describing the location of the land, and that it was only properly used in speaking of the purpose of the said company in making said purchase, to-wit, "for the purpose of straightening their track." It is clear that the word "track" does not seem to be inappropriate or inconsistent with other facts, except as I will endeavor to point out. For example, the beginning point, if located 60 feet south of the present "track," instead of 60 feet south of the "tract" of the company's land, will be in conflict with the point reached or called for at the end of the last line; and this, if borne in mind, will clearly appear hereafter. This beginning point, as it is insisted upon by the complainant, is not consistent with the fact that (as it seems to me) that point must have been 60 feet south from the south line of the company's land. From this beginning point, the line is run eastwardly, at a divergent angle from the said track, about 600 feet, to a point about 100 feet south of said "track," and thence, at a convergent angle therewith, about 1,300 feet from the point of beginning, where the said line crosses the said "track." Now, it is difficult to believe that the "track" was intended to be used in this last connection, for the mortgagor did not own the lands adjacent to the "track" of the company. He owned lands only to the tract of land belonging to the company, which, as before stated, extended a number of feet distant from the location of the "track;" and there is nothing in the case to warrant the slightest presumption that the mortgagor attempted to reserve any of the lands of the company from the operation of his mortgage; or, in other words, the court must presume that he only intended to act honestly, and to reserve for the benefit of the company about two acres and one-half of his own lands. Besides this, to reach the "track," if that was intended rather than the line dividing the "tract" of the mortgagor from the "tract" of the company, the said line, although convergent, would have been extended a very great many feet further. And this leads to another fact, which is conclusive of the error. The next part of the description is, as will be seen: "Thence running westerly along said track to the intersection of the same with Grove Avenue." I cannot think for a moment that it will be contended that the reservation was intended thus to be carried to the track of the company. Nor can it be supposed that the mortgagee for one moment so understood it, or was in the slightest degree misled by an error so manifest. Indeed, as a matter of law, it must be held that he had no right to be misled; it was his duty to know. The company was in possession and had title, of which the mortgagee was bound to take notice. But the description says that the said line last spoken of runs along said "track" to its intersectionwith Grove avenue. I think it scarcely possible that any individual accustomed to the use of the language employed in such matters, as it must be presumed everybody is, would use the word "intersect" in describing such a condition. Had the track been in the scrivener's mind, he would have said where the said "track" crosses the said Grove avenue. But it is perfectly consonant with the language used in such cases to describe such conditions by the use of the word here employed; that is, the intersection of one line with another.

When, therefore, the two facts, namely, speaking of the "track" of the company when the projecting line strikes it, and when the survey is carried along it as "track," enable me to fix the true location of the beginning point, and that was 60 feet south, as I have first stated, of the "tract" of land belonging to the company, instead of only 60 feet from the "track;" and this view of the case is much more consistent with all the other disputed facts presented by the bill and answer. I think the decree should be framed in accordance with these views.