Jackson ex dem. Erwin v. Moore

Curia, per Sutherland, J. The plaintiff, if he can recover at all, is entitled, under thé demise from the Mulhollons, the grand, children of Arthur Erwin, to 7-8 of 1-10, of 2-12 of the premises in question. Upon the same principle, he is entitled to that proportion of the residue of the 22000 acres, included in the gores. The case, therefore, is important, not only in principle, but in the extent of property which may be affected by its decision ; and deserves, as it has received, the most deliberate consideration of the court. The first question which arises is, as to the construction of the deed of September 17th, 1790. It will be recollected that the terms of that deed in its discriptive part, are, “ two tracts or parcels of land, situate in the district of Erwin, in the county of Ontario, being township no. 3, in the 5th range, also no. 4, in the 5th range, to be six miles square, and containing 23040 acres each, and no more. If, instead of this verb to be, the phraseology had been being six miles square, and containing 23040 acres each, there is no question that the whole lots would have past, whatever might have been their Size and contents. (1 Caines, 493. 2 John. 37.) A lot [717] may be as precisely and definitely described by its number, as by metes and bounds. A large portion of the land in the western district of this state, is held under conveyances containing no other description or designation of the premises intended to be conveyed, than the number of the lot; and it is perfectly settled, that when a piece of land is conveyed by metes and bounds, or any other certain description, all included within those bounds, or that description, will pass, whether it be mere or less than the quantity stated in the deed. And when the quantity is mentioned* in addition to a description of the boundaries, or other certain designation of the land, without an express covenant that it contains that quantity, the whole is considered as mere description. The quantity being the least certain part of the description, must yield to the boundaries or number, if they do not agree. (Jackson v. Barringer, 15 Jolin. 471. Powell v. Clark, 5 Mass. Rep. 355.) If a man lease to another the meadows in D. and S. containing 10 acres, and they in truth contain 20, all shall pass. (13 Vin. Abr. 79, plac. 24.) In construing deeds, effect is to be given to every part of the description, if practicable ; but if the thing intended to be granted, appears clearly and Satisfactorily from any part of the description, and other circumstances of description aré mentioned which are not applicable to that thing, the grant will not be defeated; but those circumstances will be rejected, as false or mistaken. (Cro. Car. 447, 473. Jackson v. Clark, 7 John. 217. Jackson v. Loomis, 18 John. 81. 4 Mass. Rep. 146. 5 East, 41.) What is most material and most certain in a description, shall prevail over that which is less material and less certain. Thus, course and distance shall yield to natural and ascertained objects; as a river, a stream, a spring or a marked tree. (1 Cowen, 612. 5 Cowen, 371. 6 Wheat. 582. 7 Wheat. 10.) To apply these principles to the case before us: It is contended by the defendant, that the words, to be six miles [718] square, and containing 23049 acres and no more, ares words of restriction ; and that they limit the grant to the size and quantity expressed. It is not pretended that they amount to a covenant. They are in the descriptive part of the deed, and form a portion of the only sentence which attempts to designate or describe the premises intended to be conveyed. The whole clause is undoubtedly to be considered as matter of description merely. The parties to this deed unquestionably intended, that it should operate as a complete and perfect conveyance» No subsequent survey was contemplated by them, as necessary to the location of the grant. The lots had previously been surveyed, and their cornets marked by Porter. It is not an executory contract, but the consummation of an executory agreement, made in August, 1789 ; and by adverting to that contractive shall perceive how the verb to be, came to be used in the conveyance, instead of the participle being. That contract was made in August, 1789, before the townships were run out. It was for two townships of land, to be so located, as to embrace the Caisteo flats ; and to be six miles north and south, and five and a half miles east and west. When the deed came to be drawn, the contract was undoubtedly referred to, as containing the stipulations between the parties ; and the conveyancer adopted the phraseology of the executory agreement, without adverting to the fact that a survey had subsequently been made, and the towns run out, and their corners marked, and their size thereby ascertained. The acts of the grantees and their associates, show that they considered the conveyance as perfect; and that no subsequent survey was to be made, nor any thing else to be done on the part of the grantor. They immediately proceeded to locate their deed, and to subdivide the townships among the proprietors. The acts of Phelps, also show that he entertained the same opinion ; for as soon as he ascertained that the townships were more than six miles square, he had the excess run off, without any application to, or consultation with his grantees. The original parties, and their grantees, have proceeded through [719] out upon the admission, that their rights were definitively settled by the deed ; and that the only question was as to its construction. No future or prospective sense is therefore to be attached to the words “tobe.” Every thing was complete and executed. The whole descriptive part of the deed was intended to designate a present subject of conveyance. To put a different construction upon it, would be inconsistent with the very nature of the transaction, and the manifest intention of the parties. The words, “ township no. 3, in the fifth range,” constituted, of themselves, a perfect description ; and designated the subject of the conveyance, beyond all doubt or ambiguity. If no other terms of description had been used, there would have been no difficulty in locating the grant, nor any doubt that the whole township would have passed. The subsequent part of the description, “being, or to be, six miles square,” &e. is inconsistent and irrecon-cileable with that which preceded it. The one or the other must, therefore, be rejected. We have seen that that must be retained which is most certain and most material; and that the number of the township is, of itself, a perfect description. If the number of the township be rejected, there is no description left. It is a tract of land in the district of Erwin and county of Ontario, six miles square, and containing 23049 acres; but in what part of the district or county, there is no means of ascertaining. The grant would, therefore, be void for the want of a sufficient designation of the subject. But suppose those terms to be retained, and to operate by way of restriction or limitation ; how are the six miles square to be located ? From which part of the lot is the excess to be taken ? From the north, the east, the loest or the south side ? The truth is, that no location could be made under the deed upon that construction ; and it would have been void for uncertainty. Upon- what principle did Phelps ascertain that the excess was to be taken from the east side of township 3, and the north side of township 4 ? Could he have recovered those portions of the townships from the proprietors, if they had been in possession, in an action of [720] ejectment ? Unquestionably not. The rule of construction, contended for by the defendant, would lead to all these difficulties, and would be subversive of the whole grant. The size and contents of the townships must, therefore, be considered as false or mistaken circumstances of description; and must yield to the precise and certain designation of the range and number of the townships. We are accordingly of opinion, that the whole of township no. 3, as originally surveyed by Porter, including the premises in question, passed by the deed from Phelps, of September 7th, 1790. (a) [721] The deed is not ambiguous, in a legal sense, so as to be subject to explanation or elucidation from extrinsic evidence. The next inquiry is, whether the lessors of the plaintiff are concluded by a practical location of their deed, or an acquiescence in the corrected survey of Porter ? Jt will be we recollected that Arthur Erwin died in June., 1791; that the gores were not run off by Porter, until the month of August in that year; and that no practical location was made, as to that township, by a survey and divis [722] ion among the associates, until October following. Sarah, the daughter of Arthur Erwin, and the mother of his grand children who are lessors, was at that time a feme covert. She was married in 1777, and died in 1809. Her husband, Mulhollon, survived her, and died in 1815. There has, therefore, been no participation or acquiescence, on the part of the lessors or their ancestors in the locations made, by which they are concluded. The cases upon the subject of location by the acts of the parties, and from long acquiescence, have, therefore, no application. (4 John. 140. 7 John. 238. 9 John. 100. 11 John. 123. 17 John. 29) The acts and declarations of Joseph Erwin, cannot affect the lessors. There is no evidence that he was the [723] authorized agent and representative of any portion of the Erwin family. He must be considered, therefore, as speaking and acting for himself alone. That the lessors have accepted their portion of the townships, as ascertained by the division made upon Dunham’s survey in 1792, is highly probable, though it does not appear from the case. It does appear from the testimony of Thomas M'Burney and Dugald Cameron, that other members of the family have paid the taxes upon their undivided portions of the Erwin share ; but even that fact is not proved in relation to the Mulhollons. It is not a case in which a grant will be presumed, for the sake of quieting ancient possessions. It is the ordinary case, of a legal title on one side, and an adverse possession short of twenty years on the other; unsupported by any admission or recognition of right derived from the acts or declarations af the lessors of the plaintiff, or those under whom they claim. In Jackson v. Lunn, (3 John. Cas. 109,) a deed from the original patentees to Sir Peter Warren was presumed, under the following circumstances: The patent was granted in 1735; and the tract immediately surveyed and laid out into lots. In 1736, Sir Peter Warren asserted his claim to the whole tract; and took possession of it, by executing eleven leases, for different lots, to different persons, for lives, with a reservation of rent; and by putting the lessees into possession of the demised premises. In 1737 and 1742, he paid the quit rents on the whole tract, and died in possession in 1752, by which the descent was cast upon his heirs. In the year 1767, these heirs leased two other lots, reserving rent; and at the commencement of the revolutionary war, there were about 100 settlers on the land, all of whom acknowledged the title of the heirs. The defendant came into possession about 35 years after the first entry by Sir Peter Warren ; and the court remark, that it is necessarily to be inferred, from the case, that he entered in subordination to his claim; as it is stated that that claim was not disputed, and consequently was admitted by all the settlers, until many years after the entry of the defendant. [724] The defendant showed no title ; but relied upon his possession, and the title which was shown in the original paten-tees, and which he contended, upon the evidence in the case, had never been conveyed to Sir Peter Warren. It was held, however, that, from the’facts in the case, a deed from the original patentees to Sir Peter Warren was to be presumed. In Jackson v. McCall, (10 John. 377,) the question was as to the division line between two lots. The Jots had been held and occupied according to the line set up by the defendant, for 41 years. The occupants on both sides, and especially the ancestors of the lessor of the plaintiff, and the lessor himself by building a stone wall on that line, had recognized it as the true line ; and the court held that it ought not to be disturbed. The lessor of the plaintiff professed to hold his lot as patented to one Provost. No patent was produced or proved; but an order of the colonial council in favor of Provost, dated the 8th of February, 1764, directing a survey, and a sworn copy of a survey made by the surveyor general in pursuance of that order, were produced and proved. A subsequent1' patent was proved, which was bounded on the Provost patent. The court thought the evidence warranted the presumption that the ancestor of the lessor of the plaintiff was in possession as early as 1776, under a claim of title ; and upon his death the descent wrns cast upon the lessor, who retained the possession at the time of the trial, in 1812. Upon this state of facts, the court remark, “we are then to conclude, that the father purchased the Provost title at an early day; and from the fact of the order of the council, and the original survey by the government in 1764, and the recognition of it in the patent to McKenzie, in 1765, and the continual and undisturbed possession by the family of the lessor, (for 36 years,) a patent to Provost, and a deed from him to the elder M' Donald, might even have been presumed, for the sake of quieting the possession.” The distinction between these cases, and the one at bar, is too apparent to require illustration. [725] A grant of land will never be presumed, unless the lapse of time is so great as to create the belief that it was actually made; or unless the facts and circumstances in the case, show that the party to whom it is presumed to have been made, was legally or equitably entitled to it. (1 Cowp. 102. Bull. N. P. 74. 3 T. R. 157, 8, 9. Phil. Ev. 121, et sequ.; and 129, note (a).) None of those circumstances exist in this case. If the whole townships passed by the conveyance of September, 1790, as we hold they did, then there certainly was no legal obligation on the part of the grantees to re-convey any part. Nor were they equitably bound to do it. If the township had contained less than was supposed, they would have had no claim on the grantor for the deficiency. The parties took their chance as to the size and contents of the townships; and neither was legally or equitably responsible for the result. Those of the proprietors who have recognized the title of Phelps to the gores, would probably be concluded tify such recognition. But the lessors of the plaintiff cannot be affected by their acts. The only remaining inquiry is, whether Arthur Enviri had a legal interest in the two townships to any extent, which descended to his heirs. The defendant contends that Erwin, Bennet, Thomas and Stephens, to whom the conveyance was made by Phelps, were trustees for the 12 associates; that they, therefore, held those townships as joint tenants, within the exception in the 6th section of the act, “regulating descents,” &c. (1 R. L. 54;) and that, upon the death of Erwin, the legal title survived to his co-trustees. The trust is not declared on the face of the deed. It is an absolute conveyance, in fee, to the four grantees. It is necessary, therefore, to resort to the instrument by which the trust is declared or proved, in order to ascertain its nature and extent. A trust, (other than a resulting trust,) must be manifested or proved by writing; though it may be created by parol. And the declaration of trust [726] need not be made at the time of the purchase. It may be subsequently, or, as I apprehend, in contemplation or anticipation of it. (3 Vesey, 696. 6 John. Ch. Rep. 12.) The trust, in this case, is proved by the covenant or agreement of the 18th of October, 1789, between the four grantees of the one part, and their eight associates of the other. This was after the contract for the purchase was made with Phelps; but before the deed was executed. The grantees covenanted to convey to their associates ⅛ of the purchase, upon their paying ⅛ of the consideration money and costs; and the associates covenanted to make those payments in 3 annual instalments. Whether this is to be considered a declaration of trust, or only a re-sale, it is not material to inquire ; for if it be admitted to be the former, it proves a trust only as to A ; leaving the grantees seized in their own right as tenants in common as to the residue. Holding the legal estate of the ⅛ subject to the equitable interest of their cestuis que trust, no legal objection is perceived to their being joint tenants, so far as their legal estate was affected by the trust; and tenants in common as to the residue. The covenant of the 8 associates or cestuis que trust, bound them to pay their portion of the consideration in three annual instalments. There is no evidence that any portion of this money was paid, before, or at the time of the purchase or deed from Phelps. In order to raise a resulting trust, strict proof is required; and the payment of the money at the time of the purchase, is indispensable. A subsequent payment would not raise the trust. (2 John. Ch. Rep. 409. 5 id. 19. 2 Atk. 71.) There is, therefore, no ground for contending that there was a resulting trust, in this case, which might be proved by parol. Kress, one of the cestuis que trust, conveyed his -⅛ to Erwin. Thus he had both the legal and equitable estate in ⅛. For these he had paid his money; and even if the deed had been taken in the name of another, upon a consideration paid by him, the trust would have resulted to him. (2 John. Ch. Rep. 405. 16 John. 197. 3 John. 216.) [727] As to the ⅜, then, there could have been no survivor-ship. Suppose the 8 cestuis que trust had conveyed all their interest to the 4 grantees; would not the effect have been, to have extinguished the outstanding equity, and to have left them seized, as they would have been, if it had never been created ? that is, as tenants in common, the share of each to descend to his heirs ? Without deeming it material to determine whether the statute applies to any other than pure trusts, declared on the face of the deed, such as trusts to executors to sell or to trustees to sell for the benefit of creditors, we are clearly of opinion, that there was no survivorship as to the ⅜ which belonged to Arthur Erwin, and that the legal title to these descended to his heirs. The plaintiff is, therefore, entitled to recover f of ⅛ of ⅜ of the premises in question, upon the demise of the children of Sarah Mulhollon. She was married in 1777, before the death of her father ; she was covert until 1809, and her husband survived until 1815. The 10 years after her death, allowed for the children to bring their action, had not expired when this suit was commenced. They are, therefore, not barred, within the case of Jackson v. Johnson, (5 Cowen, 74.) Judgment for the plaintiff pro tanto. Footnotes [(a)] The English authorities ’’upon this point, do not vary from the American. The doctrine of parcels was very fully considered by several of the ancient, and some of the modem English books. These were fully referred to on the argument of the principal case, by the counsel for the defendant. Most of the ancient authorities were gone over in Stukeley v. Butler, (Hob. 168 ;) and both ancient and modem are summed up and illustrated by Preston, in his Essay on abstracts of English titles, vol. 3, 205 to 210, 2d Lond. ed. This work combines author, ity with the present opinions and practice of English conveyancers. “ Respecting the parcels,” says Preston, “ the general rule is, nilfacit error nominis cum de eorpore constat, (11 Co. 21 ;) and falsa demonstrate non nocet. (Bac. Elements. Wing. Maxims.) It is fit, and therefore required, that things should be described by their proper names ; but though this be the general rule, it admits of many exceptions ; for things may pass under any denomination by which they have been usually distinguished. (Finche’s case, 6 Rep. 66.) when there is a sufficient certainty of demonstration ; as in the case of a grant of “ all ray messuage and farm, called Jl B,” no subsequent error in the descriptive circumstances will vitiate the grant. Thus, if the grant be of “ all that my messuage or farm, called A, now in the occupation of B,” the farm called Jl will pass, although, in point of fact, the farm be in the occupation of C, and not of B ; for the false demonstration by the name of the occupier will not vitiate the grant. This conclusion is quite consistent with the rule that utile per inutile non vitiatur. But when a man has a manor called A, extending into the several parishes of B and C; and he grants “ all that his manor in the parish of B,” the words, “ in the parish of B,” would be restrictive ; and so much only of the manor as is situate in the parish of B, would pass. Another distinction is also to be taken, between a grant of lands by specific names or by positive certainties, and a grant of land in general terms consisting of different circumstances; (ex grat.) a grant of land, called A, will be good to pass these lands, notwithstanding a mistake in the name or the parish, or of the abuttals, or of the name of the tenant; when the name of the parish or of the tenants, or the abuttals are, given only for the greater certainty. So, if there be721 a grant of the lands, or the farm called A, “ which descended to me from my father,” these lands thus described by name will pass, although in point of fact they descended from the mother; but when there is a grant of “ all lands which descended to me from my father,” no lands can pass except such as descended in that manner; and'the grant will fail of effect, unless there were some lands answering the description of lands descended from the father. A court of equity may correct the mistake, on proper evidence ; but in a court of law the mistake does not admit of any explanation It will also be collected from the cases given by Bacon, in illustration of the rule, “falsa demomtratio non nocet ” that in descriptions by positive certainties, it is sufficient that the first certainty be true, and subsequent errors will not destroy the grant; but when the grant is in general terms, by a reference to several circumstances, every circumstance forms an essential part of the description, and an error in one of them will be fatal. (Doddington’s case, 2 Rep. 32, b. Preston’s Shep. Touch. 246, 247.) The following instance may illustrate this observation: Under a grant of " all my lands, which were formerly the inheritance of my grandfather, and also the inheritance of my father,” no lands will pass except those in which each branch of the description can be authenticated by evidence; and the grant would fail of eifect, although there were lands which were the inheritance of the grandfather, unless they also descended from the father; and lands which descended from the father would not pass unless they were formerly the inheritance of the grandfather. So when there is a grant of all lands which were the inheritance of A. B., and conveyed by C. D., the lands will not pass unless they were conveyed by C. D., and also were the inheritance of A. B. Hence it seems an error, or at least inconvenient, in the assignment of terms, to refer, as is commonly done, to the lands as being the lands which were assigned by certain indentures bearing date, &c. and afterwards assigned by certain indentures bearing date, &c. &c. &c. ; since the description is multiplied, and an error in either branch of the description would be fatal. But let it be remembered, that when the several deeds to which reference is made, are for the purpose of embracing lands under distributive descriptions, so as to comprise lands described in one deed, and lands described in another deed, the different lands may well pass ; and an error in one of the deeds will not affect the validity of the grant, as toother lands included in a deed correctly described. Another rule marks the difference between a description which is entire, com [722] pounded of many circumstances, and a description which consists of several branches, which are distinct. In the first instance, the grant will fail unless every circumstance be true : in the latter instance, the giant may be good, if there be sufficient certainty, though some of the circumstances be not correct. The cases involving this point turn on nice and refined distinctions. In reference to this class of cases also, this difference is taken : if the first part of the certainty be true, the latter part, if false, shall be rejected ; while if the first branch be incorrect, the error cannot be cured by the relevancy of the latter part of the description; and whenever all the circumstances admit of application, they shall be retained in construction, and be restrictive, and have full effect; so as to exclude lands which do not fall within the restrictive terms. (Ognel’s case, 4 Rep. 50.) These and the like instances depend on the rules of evidence. When the deed of grant does not contain any certain description, but there is a description by circumstances, and all the circumstances may be essential to distinguish the lands intended to be granted, the law requires all the circumstances to be proved ; and will not suffer any lands to pass except those which fall within the terms. But when there is a grant of all the farm called A, it is sufficient, (Plowd. 191, 2. 8 T. R. 104,) for the person who would avail himself of that grant, to rely on this description of the farm; and if there be any circumstances of identity, from the parish, or the name of the tenant, or any other fact introduced into the grant, the other party must show its irrelevancy by proving its application to other lands ; thus making it appear that some other farm was intended to pass, or that the circumstances of identity were used as a qualification, in order to abridge the meaning of the word “ farm,” and confine it to particular lands of a given description. The following cases will best explain the numerous difficulties and nice distinctions in which this subject is involved : Doddington’s case, 2 Rep. 32 ; Prest. Shop. Touch. 244, 246 ; Doe v. Greathed, 8 East, 91; Ognel’s case, 4 Rep. 48 ; Stukely v. Butter, Hob. 170 ; Goodtitle v. Paul, 2 Burr. 1089.