Chesley v. Holmes

Tenney, J. The demandant derives her title to the premises demanded by a deed dated Dec. 1, 1851, from Jairus S. Keith, who received a deed from Moses Chesley, administrator of the goods and estate of Samuel Brown, deceased, on the same day. The administrator appears to have been duly licensed to make sale of the real estate of the intestate, and no defect in the proceedings is pointed out by the tenant. And it remains to be shown on the part of the demandant, that the premises described in the deed to her from Keith, were the property of the intestate at the time of his death. This she attempts to do by the proof of such facts as constituted a disseizin of the true owner and so long continued as to ripen into an absolute title in him. The tenant denies, that a title was obtained by disseizin, by the intestate. But if it were so, he undertakes to show that he was divested of all interest before his death by a conveyance to his sons, by deeds, with covenants of warranty. One of those deeds is dated Jan. 22, 1838, and conveys to his sons Leonard, John and Cyrus, two lots of land situated in Oxford, being lots numbered 3 and 4, in the 2d range, according to the new survey of lots in that town, to Leonard one half and to each of the other two grantees one quarter, in common and undivided. On July 11, 1838, the same grantor conveyed to Leonard Brown one undivided half of lots numbered 3 and 4, in the second range, in the town of Oxford, according to the new survey, being the farm now occupied by said Samuel Brown in Oxford. The cause of the second deed to Leonard Brown is not attempted to be explained. It may have been, that he wished to possess exclusively, the deed of the land conveyed to him. A second deed is sometimes given, embracing a de [545] scription of the land conveyed by a former with additional estate. If the latter was the intention in this case, the mode adopted does not seem well adapted to effect the purpose; for the description by the lots, and ranges in one, is identical with that of the other. And if it were the intention to embrace other lands in the second conveyance, a deed thereof alone, would be more appropriate. But we think by a reasonable construction, the design was to convey not only the land intended to be conveyed by the first deed, by the second, but to make the description more definite, and unambiguous. The conveyances made by Leonard Brown to Jacob Dwinel, one dated September 19, 1840, and the other Feb’y 10, 1844, each of an undivided quarter of lots numbered 3 and 4, in the second range in the town of Oxford, show that he put upon the deeds of Samuel Brown, a similar construction to the one adopted by us, one deed being one fourth part of those lots, “according to the new survey, it being one quarter of said lot, where Samuel Brown lives in Oxford,” and the other, “ according to the new survey, being the farm now occupied by Samuel Brown in said Oxford.” The tenant denies, that it is established, that the conveyances of Samuel Brown to his sons were of lots numbered 3 and 4, in the second range, according to the plan, which according to the testimony of William O. Whitney was introduced at the trial. Whitney testified, that the name of “ Alexander Greenwood” upon a plan shown, was the handwriting of Greenwood; that directions were given him, to have the lands surveyed, and they were; and that survey was called the new survey. But whether that plan was that of the new survey or some other, does not appear. The sketch of a plan taken by Noyes is not shown to have been copied from Greenwood’s plan of his new survey; but the. certificate thereon is, that it is a true copy of the old original plan, now in the possession of William G. Whitney. But if it were made to appear clearly, that the plan exhibited at the trial was that made by Greenwood, when he was directed to make the survey, which probably was the [546] fact; and that the sketch was taken therefrom, which makes a part of the case, this plan, according to well established principles, cannot be treated as having any influence upon the decision of this case; because it is not referred to in the deeds of Samuel Brown to his sons, as part of the description. It is only when the grant is made according to a plan, distinctly and certainly designated by the deed, that the plan becomes a part of the deed, and in such case it is subject to no other explanations, than other parts of the deed. Pro. Ken. Purchase v. Tiffany, 1 Greenl. 219. In the deeds of Samuel Brown, no reference is made to any plan, or to the survey of Greenwood, or any other person. It is of lots numbered 3 and 4, second range, according to the new survey. This is certainly not a distinct and certain designation of a plan, or of a survey, and the plan introduced at the trial makes no part of the deeds of Samuel Brown. We must, therefore, understand those lots which are mentioned in the deeds, as those, which composed the farm, occupied by Samuel Brown in the town of Oxford, at the time, when those deeds were dated. The case is not analagous to that of Allen v. Allen, relied upon by the demandant, in which no question was made touching the plan referred to in the deed; but it is more like that of Worthington v. Hylyer, 4 Mass. 196, and of Abbott v. Pike, 33 Maine, 204. It is true, that in those cases, the farm intended to be conveyed, as the Court held, in each case, was not in any part of it, on the lot referred to. In this case, no plan being a part of the description in Brown’s deeds, the location of the lots, No. 3, and No. 4, in the range 1, is uncertain, excepting so •far as they are made so by what follows. The farm occupied by Samuel Brown in the year 1838, is shown very clearly to have extended from the line of the Pigeon hill lots to Hogan pond; and that there was no intermediate line. He lived upon land, which is easterly of the line on the plan introduced, representing the range line be [547] tween the ranges, 1 and 2, from the time he moved into the town, which was about 1804, till his death in 1845. No evidence is introduced having a tendency to prove, that the farm on which he always lived in the town of Oxford did not extend to the line of the Pigeon hill lots. And it having been his intention, according to a proper construction of his deeds, to extend the boundaries to that line, he had no title to the premises described in the demandant’s writ at the time of his death; and nothing passed by the deed of the administrator of his estate. Demandant nonsuit.