The opinion of the court was delivered by: MEANEY
This is an action in ejectment.
Plaintiffs are the heirs of one James Searing, who made three certain deeds to the Morris Canal and Banking Company dated January 11, 1830, March 28, 1833 and March 1, 1856. They claim an undivided interest in the lands described in said deeds on the theory that title to such lands has reverted to them by virtue of the abandonment of the use of the lands for canal purposes.
The canal company was chartered by act of the legislature in 1824. P.L.1824, p. 158, N.J.S.A. 13:12-1, entitled "An Act to incorporate a company to form an artificial navigation between the Passaic and Delaware Rivers." In 1924 the Canal was closed to navigation and ordered dismantled. Thereafter it ceased to be used for a canal. P.L.1924, p. 506, 1937 R.S. 13:12-13, N.J.S.A.
The plaintiffs allege that the deed dated January 11, 1830 and the deed dated March 28, 1833 are void because they insufficiently and improperly describe the premises which are attempted to be conveyed. They contend that the only effective transfer of title to property to which they now lay claim was by deed dated March 1, 1856. The defendants on the other hand contend that the deeds of 1830 and 1833 are valid and subsisting conveyances of the lands in question, and that the deed dated March 1, 1856, whatever the purpose for which it was made, could not be valid since it attempted to convey lands of which the grantor had already dispossessed himself by the previous conveyances of 1830 and 1833.
Extensive arguments have been offered to substantiate both contentions, but it is the view of this court that the first two deeds, those of 1830 and 1833, were valid and constituted an effective conveyance of the lands in question.
This determination would constitute an effective disposition of the question issue.
The deed of 1830 recites in part as follows: "And whereas the said canal is laid across certain lands, lying in the township of Newark in the County of Essex now belonging to James Searing of the township of Newark, aforesaid. Now be it known that I the said James Searing in consideration of the sum of One dollar lawful money of the United States to me in hand paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, and for other considerations me thereunto moving, do hereby give, grant, bargain and sell, assign and convey to the said Morris Canal and Banking Company, their successors and assigns, all the said lands necessary and proper to be taken and occupied by them for the purposes aforesaid. Provided the lands so taken and occupied shall not exceed one and an half acres, for the said Canal Lock and other works and devices. To have and to hold the said lands and premises to the said The Morris Canal and Banking Company, their successors and assigns, so long as the same shall be used for the purposes for which the Morris Canal and Banking Company have the power to use the same by the true intent and meaning of the said Act."
The description in the portion of the deed above set forth is a general one, couched in broad terms, failing to specify or point out in detail the land intended to be conveyed. There is an absence of definite monuments, courses and distances.But the deed is by no means a blank. It fixes the locality as being the premises owned by Searing which the said canal "is laid across", "lying in the township of Newark" and not to exceed "one and an half acres". It is not an unlocated one and an half acres though it is an unbounded area. The purposes for which it was purchased indicate its proximate location.
It is a well-settled proposition that an instrument will not be declared void for uncertainty but will, whenever possible, be construed to give effect to the intention of the parties and to that end will be examined with all the light that contemporaneous facts may furnish.
The description may be general and need not be by boundaries, corners, distances, or monuments if only, with the aid of parol evidence, the location of the land is possible. 6 Thompson on Real Property, Perman. Ed., § 3267, p. 434.
An examination of the New Jersey cases cited, and independent research, has failed to reveal any cases in New Jersey which bear directly on the point in question. Perhaps that case which falls nearest in point and which is cited for both sides is McLaughlin & Stout v. Bishop, 35 N.J.L. 512. In that case, in an action in ejectment, the deed was not lacking in description, but contained an ambiguity in that certain lot numbers recited in the description in the deed were not in existence. The court therein stated in part: "What part of the description shall be rejected and what part shall control the grant, must depend, in a measure, upon the collateral facts and circumstances which appear in the case, the search in all cases being for the intention of the parties." And further "If, in the light of all the proofs in the case, the intent of the parties cannot fairly be drawn from the words used, the grant will be frustrated and no estate will pass." It seems apparent that the court in the McLaughlin case was restating the rule that no grant shall be declared void for uncertainty unless and until, in the light of all the proofs in the case and "after the most diligent search" the intention of the parties still cannot be ascertained to cure the uncertainty.
An examination concerning construction of deeds in New Jersey will, I believe, aid in determining to what extent New Jersey courts will go in order to ascertain the intent of the parties for the purpose of making effective the uncertain or vague descriptions in deeds. In Jackson v. Perrine, 35 N.J.L. 137, 142, the New Jersey Supreme Court stated (Depue, J.): "The law is well settled, that where the language of a deed admits of but one construction, and the location of the premises intended to be conveyed is clearly ascertained by a sufficient description in the deed, by courses, distances, or monuments, it cannot be controlled by any different exposition derived from the acts of the parties in locating the premises. But it is equally well settled, that when the language is equivocal, and the location of the premises is made doubtful, either by the insufficiency of the description, or the inconsistency of two or more parts of the description, the construction put upon the deed by the parties in locating the premises, may be resorted to, to aid in ascertaining the intention of the parties."
Again in Camden & Atlantic Land Co. v. Lippincott, 45 N.J.L. 405, it was stated: "If the words of a grant be ambiguous, the court will call in aid the acts done under it ...