Bartlett v. Corliss

Dickerson, J. This case calls for a construction of the description of the premises conveyed by the warrantee deed of Harvey Fuller to Silas MeKenney, dated February 16, 1831, under which the defendant claims title. The wording of the description is as follows: “said land lying on the easterly side of the road running by said Fuller’s house southerly, and is the same which was conveyed to me by deed from Joseph Tobin, being a part of lot number twelve in the fifth range, and enough off of the west end of lot number thirteen in the sixth range, including a certain piece which the said Tobin conveyed to said MeKenney by deed, to make fifty acres, exclusive of water, and for further particulars referring to the above mentioned deed.” This description is to have such construction as the parties intended when the deed was given, if that is not repugnant to the rules of law; and their intention is to be ascertained primarily and mainly from the language used. The reference iff the description to the two Tobin deeds makes those deeds a part of the deed in. controversy. It appears from an inspection of them that the boundaries of the respective parcels of land they convey are fully and completely given. There is, therefore, no difficulty in determining the quantity of land conveyed by them. Thus far there is no such uncertainty or ambig — 291 — uity in the description as to allow the introduction of parol evidence to show the intention of the parties, since what in law can be made certain is to be regarded as certain. Both parties proceed upon the assumption, quite apparent from the description of those two parcels, that the quantity of land they contain falls short of the call in the deed under consideration— fifty acres. The deed provides that this deficiency is to be made up by taking “enough off of the west end of lot number thirteen in the sixth range, exclusive of water” for that purpose. We do not think that this clause in the description is either unintelligible, or ambiguous. In the first place the parcel of land to be taken from lot thirteen is to come “off of the west end of the lotthat is, not from a part, but from the whole of the west end of the lot. It follows from this that the strip thus taken must be of equal width along the whole line of the west end of that lot, as there is nothing in the deed to indicate an inequality of width. In the next place, this strip must be of sufficient width to contain land enough “exclusive of water,” which added to the other two parcels shall make fifty acres. The qualifying phrase, “exclusive .of water,” does not signify a boundary, or a limitation of the quantity of territory taken from lot thirteen by the deed, but the exclusion of that part of the land so taken, which is flowed with water, from the computation in making up the fifty acres necessary to answer the call in the deed. The meaning is the same as if that clause read, “besides,” or “not computing,” instead of “exclusive of,” the water. By the deed under consideration, the defendant’s grantor acquired title to a strip of land extending across the whole of the west end of lot thirteen in the sixth range, of equal and sufficient width, besides the land therein flowed by water, to make fifty acres when added to the other parcel conveyed by the same deed, and to the land previously conveyed to the said grantee by Joseph Tobin. This construction is not repugnant to any of the rules of law, gives effect to the intention of the parties, and establishes a boundary readily ascertainable from the data given in the deed. — 292 — Hnder this construction the defendant’s title, acquired from the grantee of the deed under consideration extends to the south line of lot thirteen, making him the owner of the land where the alleged trespass was committed. Jxidgment for the defendant. Appleton, C. J., Walton, Barrows, Danforth and Virgin, JJ., concurred.