Witham v. Cutts

Mellen C. J. From an inspection of the record of the division of Joshua Dennett’s estate, referred to in the report of this case, we must gather the intention of the committee who made the division. It seems clear that they considered the lot as containing 100 acres; and equally clear that they intended a division of the whole. The northerly part they assigned to John Dennett, and the southerly part to the heirs of Thomas Dennett. They have thus settled the proportion in which the assignees were to hold what was then supposed to be a lot containing one hundred acres. It is found to contain one hundred and thirty. If the fifty-five acres assigned to John Dennett had been actually run out and the boundaries established by monuments which could now be recognized, those boundaries would be conclusive as to the extent of such assignment. But there was no actual location of either of the tracts assigned. We must then resort to the next best evidence; which is the return of the committee, and their evident intention as disclosed by that return. By adopting this principle and rule of construction, we arrive at once at the same conclusion at which the Judge, who tried the cause, arrived ; and we fully confirm his opinion. The principles settled by this 33 court in the case of Brown v. Gay 3 Greenl. 126, are applicable in all essentials, to the case at bar. It is contended that the return describes the fifty-five acres with so much precision, that it cannot be misunderstood, or by construction extended beyond the number of acres specified; and that the forty-five acres named in the return, are not so described ; but that -this portion being said to be the southerly part of the lot, the assignment of it should be construed to embrace all except the fifty-five acres. Such a construction might be given, if nonumber of acres had been named; and perhaps the plaintiff and defendant would both be limited to the specified number of acres, had the original owner of the lot conveyed the two parcels by deed to different persons. But, as before observed, the lot was supposed, at the time of division, to contain only one hundred acres; and the commissioners evidently intended to divide the whole. And they clearly intended that the share of John Dennett should be less by ten acres than the share assigned to the heirs of Thomas Dennett; yet, on the plaintiff’s construction, they would hold twenty acres more. Such a construction cannot be admitted. If both assignees should be limited to the exact number of acres mentioned in the return, the locus in quo would belong to neither of the parties. But the assignment is a single transaction and must be so considered; and such a consideration leads to the result above mentioned. Accordingly the nonsuit is confirmed and there must, be judgment for the defendant.