Call v. Barker

Weston C. J. The respondents, admitting the original title of the petitioner, as set forth in his petition, claim notwithstanding to be sole seised, depending on the proof introduced by them, that his title has been conveyed to others, under whom they hold. The first inquiry which presents itself is, whether the deeds made by the petitioner, cover all the land of which partition is prayed. He was the owner of one half, in common and undivided. He conveyed in fee, and in mortgage, one sixth of the whole, in September, 1812, to Henry Rice, fay which his moiety was diminished to one third. In February, 1813, he conveyed also in fee, and in mortgage, one undivided third of a tract of land described in his deed to James Thom. If this tract is the same with that described in the petition, after the execution of these deeds, his only remaining interest was a right to redeem the land so conveyed. His counsel contend, that his deed to Thom, does not cover a gore on the northeasterly part of the land in controversy, two rods and a quarter in width at the northerly end, and terminating in a point at the southeasterly corner of the tract. If the land described in the deed, to Thom, is to be located according to the courses there given, the petitioner is right in this part of his claim. And these courses must be pursued, unless a monument or monuments are to be found, by which they may be controlled ; for it is a settled principle of law, that courses and distances yield to monuments. Thus, if a line is to run in a certain course, a given number of rods, from one stake or stone to another, if these can be found or located, a strait line is to be drawn between them, although it may vary both in course and distance, from the line given in the deed. There is no controversy as to the point of beginning, in the deed to Thom, or as to the point on the county road, thirty-two [326] rods southwesterly therefrom, at which the first line terminates. The1 next line described, is to run north, forty-eight degrees west, fifty rods, to a stake one rod beyond a small stream. If that stake, or the point where it stood, can be found, the parties made it, and the law establishes it, as the termination of the second line. It does not appear from the case, that the stake referred to, is still in existence, nor is it expressly agreed where it stood ; but as the court are to draw such inferences from the facts found, as it would be competent for a jury to do, it becomes important to inquire, whether from the facts, the location of the stake can be deduced. The east line and the southerly corners of the land, described in the deed to Thom, correspond with that described in the petition.. The end lines of each are to extend thirty-two rods, and the side lines of both are parallel. The deed of June, 1803, which the petitioner adduces to prove his title, describes his southwesterly line, as running from the county road, on William Hammond’s line, to a stake and stone, one rod back of a small stream, back of the old county road. There are so many coincidences between the land set forth in the petition, as proved by the deed to him, and that described in the deed to Thom., that we have no hesitation in deciding, that a jury would be warranted in finding, that the stake one rod back of a small stream, back of the old county road, mentioned in the deed to the petitioner, is the same with the stake described, one rod beyond a small stream, in the deed to Thom. As the line there given run from the county road, “ beyond,” in that deed, has the same meaning with “ back of,” in the other-. By this construction, the land conveyed to Thom, will be located, according to the petitioner’s title, whereas by disregarding that, and adhering to the courses, there is conveyed to him a gore of land on the southwesterly side, which his grantor did not own, while a corresponding gore is reserved upon' the opposite side, of a most inconvenient shape and form, if owned in severalty, and still more so, if owned in common with others. It is not found or pretended, that there ever existed more than one stake, set up as a corner in that direction. In the petition, that line is described, as running north, forty-five degrees west, arid one set up at the end of fifty-rods, the distance given in the deed to Thom, would be [327] ten rods, instead of one, beyond tbe brook. In the deed of 1803> the same side is bounded on Hammond’s line. As that deed is relied upon by the petitioner, Hammond’s line must be understood to run the course given in the petition. If the stake, referred to in both deeds, is the same, can the point where it stood be ascertained ? It was one rod, measuring, north, forty-five degrees west, which coincides with William Hammond’s line, from the point at the brook, where that line-crossed. The course and distance from this point, which is a monument referred to, being given, the location of the stake can-be fixed with great precision. By both deeds, the next line was to extend thirty-two rods, and there is no controversy about the course, which is parallel with the first line. The line in both, deeds would then terminate at the same point. The closing line,, by the deed to Thom, ran from that point to the point of beginning. But to effect this, the course given in that deed must be-varied three degrees, as it was in the second line by the same-rule, and upon the same principle. The result is, that both deeds; from the petitioner embrace the gore, which he contends was reserved to himself. Any person, interested with others in any lot, tract of land, or other real estate, may, by the second section of the act for the partition of lands, statute of 1821, ch. 37, have this process. And if a tenant in common in possession resorts to it, it may be no objection, on the part of the other co-tenants, that he is the owner only of an equity of redemption. A mortgagor in possession, is a tenant at will to the mortgagee. But after the latter has entered for condition broken, the mortgagor has at law no interest whatever in the estate. Before foreclosure, he may, upon tender of the money due, again entitle himself to the land, but if his-right is resisted, his only remedy is by a bill in equity. Parsons v. Wells & al. 17 Mass. 419, and the cases there cited. If the entries of the mortgagees in the present case, after condition broken, w'ere not effectual for the purpose of foreclosure, at an earlier period, there being, as it is contended, no notice, actual or constructive, to the petitioner, their assignees did in September, 1828, if not before, take actual possession of the land, which they have continued ever since. A tenant inter [328] ested In the estate, although out of possession, if he has a right of entry, may maintain this process, as was decided in the case of Bailies & al. v. Bussey, 5 Greenl. 152, but the petitioner has no right of entry against the respondents, who hold under the mortgagees, nor has he any interest in the estate, which can be recognized at law. And this is decisive of the case, as it is presented to us, against the petitioner. Whether he has any remedy by a bill in equity, or whether his rights have been foreclosed by the entries first made in behalf of the mortgagees, upon the ground that upon the facts, notice is to be inferred against him, or whether the continued possession of those, who claim under them, since 1828, is to have that effect, are questions which, under this process, it is not necessary for us to decide. Petitioner nonsuit.