Moses v. Morse

Peters, J. If an unrecorded deed be lost after delivery, is parol evidence of its contents admissible ? Is there a distinction, in this respect, between a lost deed recorded and one not recorded? We think such proof admissible. No statute prevents it. The statutes seek, in several ways, to make an unrecorded deed valid and available to those interested in or under it. It is but a rule of evidence that requires deeds to be recorded before introduced as evidence. The rule cannot require a deed not in existence to be recorded. Impossibilities are not required. The necessity of the case establishes an exception to the rule. The reason of the rule does not apply with all its force in such a case. Valentine v. Piper, 22 Pick. 85; Palmer v. Paine, 9 Gray, 57. Of course, the parol evidence, to establish the loss, should be plenary. It is contended that the immediate deed under which the plaintiffs claim title to the land in question should have been rejected for its indefiniteness and uncertainty of' description. The description is this : " A certain piece of land situated in said Phipsburg, near the east end of the old Winnegance Mill Dam, ■and being the same land said to have been conveyed to said Reuben S. (Morse) by his late father, Wm. Morse, and reserved from a farm conveyed to Albion W. Morse (defendant), dated July 10, 1859, and recorded,” &c. &c. The deed was admitted in evidence, and we think rightly. Of course, the deed without evidence ah extra would prove nothing. A description in a deed rarely proves itself. The question is, whether the description is sufficient to let in parol [475] evidence to identify the premises. The general rule governing the question, deducible from the leading authorities, as stated by Barrows, ,1., in Cilley v. Childs, 73 Maine, 133, is this : "A deed shall not be held void for uncertainty, but shall be so construed, wherever possible, as to give effect to the intention of the parties and not defeat it; and this may be done whenever the court, placing itself in the situation of the grantor at the date of the transaction, with knowledge of the surrounding circumstances and of the force and import of the words used, can ascertain his meaning and intention from the language of his conveyance thus illustrated.” We refer to the discussion and citations in that case as ample authority for the admission of the deed here. Under proper instructions the jury found what premises were thereby really conveyed. Dow v. Jewell, 18 N. H. 341; Robinson v. Brennan, 115 Mass. 582. Exceptions overruled. Appleton, C. J., Barrows, Daneorth, Yirgin and Symonjds, JJ., concurred.